Ross v. Preferred Accident Ins. Co. of N.Y.

• Decision Date: 14 May 1925
• Docket Number: No. 1548.,1548.
• Citation: 28 Haw. 404
• Parties: ETHEL A. ROSS v. THE PREFERRED ACCIDENT INSURANCE COMPANY OF NEW YORK.
• Court: Hawaii Supreme Court

28 Haw. 404

ETHEL A. ROSS

v.THE PREFERRED ACCIDENT INSURANCE COMPANY OF NEW YORK.

No. 1548.

Supreme Court of the Territory of Hawai‘i.

Submitted February 6, 1925.

Decided May 14, 1925.

OPINION TEXT STARTS HEREERROR TO CIRCUIT COURT FIRST CIRCUIT. HON. R. J. O'BRIEN, JUDGE.

(Peters, C. J., dissenting.)

Syllabus by the Court

In an action on an accident insurance policy the allegation was that the cause of the death of the insured was the accidental overturning of an automobile in which he was riding. No evidence was adduced at the trial from which the jury could properly find that there was an overturning of or any other accident to the automobile. Held, that the statement in the declaration that the accident consisted of an overturning of the machine was not surplusage; that the proof was confined to the allegation as to the nature of the accident; and that the verdict could not be sustained on the theory that an accident occurred other than that alleged.

Frear, Prosser, Anderson & Marx and A. E. Steadman for plaintiff in error.

Thompson, Cathcart & Beebe and Marguerite K. Ashford for defendant in error.

PETERS, C. J., PERRY AND LINDSAY, JJ.

OPINION OF THE COURT BY PERRY, J.

This is an action brought by the beneficiary named in an accident insurance policy for the amount of the insurance. The plaintiff, who was the widow of the insured, set forth in her declaration the corporate capacity of the defendant insurance company, its lawful authority to carry on in this Territory the business of accident insurance and the issuance on December 15, 1906, by the defendant of a policy insuring her husband with relation to accidents in the sum of $7500, if he should continue to pay the premiums mentioned in the policy for six years after its date; and further set forth that her husband died on September 27, 1921; that all the premiums payable under the policy were duly paid by him during his lifetime; that at the time of his death the policy was in full force and effect and that her husband in his lifetime and the plaintiff after his death had each duly performed all of the conditions of the policy on their part to be kept and performed, with the exception of certain terms relating to notice and proof of death which, as the plaintiff claimed, had been waived by the defendant. She also alleged that it was the provision of the policy that the amount of insurance named therein was to be paid by the defendant “in the event of death” (of the insured) “resulting directly, independently and exclusively of any and all other cause or causes from bodily injury effected solely through external, violent and accidental means;” “that on or about the 21st day of September, 1921, and while said policy was in full force and effect, said Harvey L. Ross” (the insured) “received a bodily injury solely through external, violent and accidental means; to-wit: bruises and contusions caused by the accidental overturning of an automobile driven by the said Harvey L. Ross, which said injury caused the death of the said Harvey L. Ross within ninety days thereafter; to-wit, on the 27th day of September, 1921; and that his said death resulted directly from said accident, independently and exclusively of all other causes.” There is no other allegation in the declaration concerning the nature of the accident which is claimed to have caused the death of the insured.

The defendant filed a motion for a bill of particulars asking that the plaintiff be required to designate (1) “the date and time of day of the accident alleged to have taken place as set forth in said complaint” and (2) “the place where said alleged accident took place,” and this motion was granted to the extent of requiring the plaintiff to “furnish to the defendant a bill of particulars setting forth with particularity the place where the alleged accident took place set forth and described in plaintiff's complaint.” In the plaintiff's bill of particulars filed in compliance with this order it was alleged “that said accident more fully described and set forth in plaintiff's bill of complaint herein, took place and happened on the Island of Oahu, Territory of Hawaii, and while plaintiff's decedent was driving said automobile from Honolulu to Kahuku, and said accident happened in the district of Koolaupoko on said Island of Oahu as aforesaid.” Thereafter the defendant filed an answer in which it denied “the truth of each and every allegation therein contained.” The cause was tried before a jury which rendered a verdict in favor of the plaintiff in the sum of $7500 and judgment was entered accordingly. An exception was noted to the verdict, at the time of its rendition, on the ground that “it is contrary to the law, contrary to the evidence and contrary to the weight of the evidence” and notice was given of a motion for a new trial, which motion was later presented. The case comes to this court upon a writ of error.

There are nineteen assignments of error, some relating to rulings on evidence, some to the denial of a motion for a directed verdict, one to the refusal of an instruction requested by the defendant “that there is no evidence of an accident to insured as alleged in plaintiff's complaint and bill of particulars,” others to other rulings upon instructions given and requested and others to the correctness of the verdict and the judgment.

One of the questions presented by these assignments is whether evidence was adduced which was sufficient as a matter of law to support a finding by the jury that there was an overturning of the automobile in which the insured was riding.

It is undoubtedly the law that the jury is the sole judge of the facts and that this court cannot on exceptions or error pass upon the credibility of the witnesses or the weight of the evidence; but it is equally well settled in this jurisdiction that it is a question of law, within the province of this court to decide, whether there was before the jury in any given case evidence which was legally sufficient to support the verdict or to justify any particular finding of fact, that a mere scintilla of evidence is not sufficient to support a verdict and that there must be some substantial evidence in order to justify this court in sustaining a verdict or finding. “Judges are no longer required to submit a case to the jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury to proceed in finding a verdict in favor of the party introducing such evidence. Decided cases may be found where it is held that if there is a scintilla of evidence in support of a case, the judge is bound to leave it to the jury; but the modern decisions have established a more reasonable rule, to wit, that before the evidence is left to the jury, there is or may be in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.” Commissioners v. Clark, 94 U. S. 278, 284, quoted with approval in Kamalu v. Lovell, 5 Haw. 62, 64 (1883). “The evidence relied upon by the plaintiff in this matter is, in our opinion, so very slight and so very unsatisfactory that it is insufficient to sustain the verdict. The evidence of adverse possession, on the other hand, is strong and convincing. In so holding we are not unmindful of the rule, repeatedly laid down in former cases, that a verdict cannot be set aside where there is sufficient evidence to sustain it, but a mere scintilla of evidence is not sufficient for that purpose.” Smith v. Hamakua Mill Co., 14 Haw. 669, 677 (1903), the court again quoting with approval from Commissioners v. Clark, 94 U. S. 278. “To amount to more than a mere scintilla the evidence must be of a character sufficiently substantial, in view of all the circumstances of the case, to warrant the jury, as triers of the facts, in finding from it the fact to establish which the evidence was introduced.” Holstein v. Benedict, 22 Haw. 441, 445 (1915). To the same effect are Wo Sing & Co. v. Kwong Chong Wai Co., 16 Haw. 17, 21 (1904); Richards v. Ontai, 19 Haw. 451, 458 (1909); Robinson v. H. R. T. & L. Co., 20 Haw. 426, 432; 467 (1911); Tyler v. Wise, 21 Haw. 148, 153 (1912); Scott v. Hawaiian Tobacco Plantation, 21 Haw. 493, 497 (1913).

In the case at bar there was evidence tending to establish the defense that, while on or about September 21, 1921, the date named in the declaration, the insured drove in his automobile from Honolulu to Kahuku through the district of Koolaupoko, no overturning of the machine or other accident with the automobile occurred and also evidence tending to show that, immediately prior to the automobile trip in question, the insured was ill and complained of having the pleurisy and took medicine therefor; but upon this inquiry that evidence must be wholly disregarded. For present purposes regard must be had solely to the evidence, and to all of the evidence, which tended to show that the automobile was overturned. The following is a statement of the evidence admitted at the trial and favorable to the plaintiff's claim:

The insured was a physician, practising at the time in the district of Kahuku, at the northwestern end of this island, and perhaps in neighboring districts. Several witnesses, including relatives of his, a physician and others, testified that they saw the insured on the day next preceding the date of the alleged automobile accident and that, aside from the ordinary effects of the extraction of a tooth, he appeared to be in good health and also that he had no cough. A Japanese nurse employed at a hospital at Kahuku testified that, on or about September 19 or 20, Dr. Ross arrived at the hospital at Kahuku about 3 p. m. in his automobile upon his return from Honolulu and that he had started for Honolulu in his automobile...