Security Mut. Life Ins. Co. v. Hollingsworth

• Decision Date: 09 September 1969
• Docket Number: No. 42054,42054
• Citation: 459 P.2d 592
• Parties: The SECURITY MUTUAL LIFE INSURANCE COMPANY, a foreign corporation, Plaintiff in Error, v. Helen J. HOLLINGSWORTH, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 592

459 P.2d 592

The SECURITY MUTUAL LIFE INSURANCE COMPANY, a foreign corporation, Plaintiff in Error, v. Helen J. HOLLINGSWORTH, Defendant in Error.

No. 42054.

Supreme Court of Oklahoma.

Sept. 9, 1969.

Rehearing Denied Oct. 14, 1969.

Syllabus by the Court

1. Where insured drowned while swimming ashore, after private airplane in which he had been a passenger had made a forced landing in lake approximately 200 yards from shore without injury to plane occupants, drowning having occurred when insured was approximately 50 yards from shore and there was no evidence death resulted directly or indirectly from injuries sustained from travel in plane the exclusion clause of policy did not apply.

2. Instructions of the trial court must be viewed in the light of the evidence upon which they operate. The question of whether an inaccurate statement of law in an instruction constitutes prejudicial error may depend as much on the evidence before the jury as upon the abstract accuracy of the language used.

Appeal from District Court of Latimer County; George Windham, Judge.

Action by named beneficiary to recover accidental death benefits under group life insurance policy. Judgment was entered in plaintiff's favor upon jury verdict and insurer appeals. Affirmed.

Ben L. Burdick, Jack R. Durland, Jr., Crowe, Boxley, Dunlevy, Thweatt, Swinford & Johnson, Oklahoma City, for plaintiff in error.

Schwoerke & Schwoerke, by C. W. Schwoerke, Oklahoma City, for defendant in error.

BERRY, Vice Chief Justice.

This is an appeal from a judgment entered upon a jury verdict in favor of defendant in error, who was plaintiff in an action to recover accidental death benefits under a group life insurance policy, issued by plaintiff in error, under which plaintiff's decedent was insured.

The policy involved, covering employees of the Oklahoma National Guard, provided for payment of accidental death benefits, but also contained this exclusionary clause:

'This accidental death or dismemberment benefit shall not be payable if the death or dismemberment of the Insured shall result directly or indirectly from

'4. Travel or flight in any species of aircraft, except as a passenger on a licensed aircraft piloted by a licensed passenger pilot on a scheduled air service regularly established between specified airports. * * *'

The essential facts are not in serious dispute. Defendant admitted issuance of the policy to plaintiff's husband, and that death occurred while the policy was in force.

The petition alleged these matters: Insured's death by drowning after a private airplane in which he was a passenger made an emergency landing in Lake Shawnee; deceased was uninjured in the landing, climbed from the plane and began swimming toward shore; when approximately 50 feet from where water was shallow deceased became entangled in a trot line and drowned; this was an independent, intervening, and proximate cause of accidental drowning which made double indemnity benefits due and payable under terms of the policy.

Defendant answered admitting issuance of a group policy under which deceased was insured. By way of defense death was alleged to have resulted directly or indirectly as result of travel in a private plane piloted by other than a licensed passenger pilot on a scheduled air service; insured's death was not covered under accidental death provision of policy by reason of above quoted exclusion in the policy issued; defendant was not indebted to plaintiff under the policy or for any reason.

The evidence showed decedent, accompanied by the pilot Webb and one Barnard, all National Guard employees, left work about 4:20 P.M. on the day in question. After visiting a local tavern briefly the parties adjourned to the airbase and embarked on a flight, the plane being piloted by Webb. This flight lasted until about 6 P.M. The parties returned to the tavern and were joined by Doyle Burris, an employee at Tinker Field. About 7--7:30 P.M. the parties began a second flight with Webb as pilot, deceased in the right front seat, and the others in the rear seats. The course of flight eventually was over Shawnee Lake, where the plane circled, and came back close to the water. When the tail struck the water the plane bounced three times, struck the water and sank, with the tail sticking up. Other than slight scratches on two men (Webb and Barnard) none of the occupants were injured. When the plane began sinking the four men started swimming toward a light on shore approximately 200 yards away. Shortly after beginning to swim Burris was heard calling for help. When Barnard was about 30 feet from a boat dock he heard deceased call for help and, upon reaching the dock, turned and observed deceased then was approximately 50 yards from the dock. Barnard sought but was unable to find a boat, returned to the dock and assisted Webb from the water, then restrained him from returning when deceased again called for help and was observed swimming in the same place on top of the water. The witness was of the opinion deceased was on top of the water 10--15 minutes before finally sinking from sight. Undisputed evidence established deceased was recognized to be a strong swimmer.

An employee of the Wildlife Department (Rose) upon learning the plane had gone down returned to the lake and proceeded to the scene in his boat. Being directed to the location where the drowning victims were thought to be, Rose, accompanied by another, began dragging the area between the dock and the sunken plane and shortly discovered one victim. This body was not entangled, and was removed from the water and carried to the dock. The second body was found approximately an hour later during dragging operations conducted by the local fire department. When discovered this body was entangled in a trot line, which had to be cut away before the body could be removed.

At this point we mention the severely conflicting evidence concerning recovery of the bodies. Defendant's evidence was that deceased's body, the first recovered, was not entangled in anything. Further, the second body, recovered approximately an hour later, was entangled in a trot line. There was deposition testimony from members of the fire department rescue squad which indicated the second body removed from the water was that of deceased. This testimony, given upon basis of the fire department records of the tragedy by those who participated in the occurrence, indicated deceased was the second body recovered.

The deposition testimony mentioned was objected to, upon grounds the best evidence for identification of the second body recovered was the official fire department records. The witnesses indicated inability to identify this body, and based their testimony upon the records. Defendant insists such evidence was not competent, and resulted in severe prejudice, since the best evidence rule demanded production of these records.

Demurrer to plaintiff's evidence was overruled, as was defendant's motion for directed verdict at close of the evidence. Errors assertedly resulting from overruling these motions provide basis for defendant's principal claim for reversal of the judgment. The issues were submitted to the jury under instructions from the trial court which defendant contends were erroneous, in part, because instructing the jury upon proximate cause which was inapplicable to the issue of liability under the insurance contract and prejudicial to defendant's rights.

The jury returned a verdict in plaintiff's favor for the amount ($7,500.00) due under the policy for accidental death benefits, with interest from date of insured's death. This appeal results from the judgment entered upon that verdict.

Before discussion of arguments offered to support claims of reversible error the following matters should be mentioned. The policy here involved insured against accidental death or dismemberment. The only applicable exclusion is the aeronautics exclusionary clause quoted above. Defendant admits, and the evidence positively shows, insured's death was occasioned by drowning. Obviously liability attached unless such accidental death specifically was excluded by the policy.

However, in this connection defendant states the general rule that, where terms of the policy are not ambiguous, establishment of a right of recovery is determinable solely within the legal conditions specified by the contract. Metropolitan Life Ins. Co. v. Rosier, 189 Okl. 448, 117 P.2d 793. Defendant then urges under McCarty v. Occidental Life Ins. Co., etc., Okl., 268 P.2d 221, plaintiff had the burden of proving the accident in which deceased was involved was covered specifically under the contract. From this defendant then concludes plaintiff was required to show death was not within the exclusionary clause under which defendant denied liability.

The holding in McCarty, supra, is not susceptible of such interpretation. Following Rosier, supra, the decision simply holds that in actions to recover either accidental death benefits, or double indemnity benefits under an ordinary life policy under a policy provision making accidental death a condition of liability, the plaintiff must accept and discharge the burden of establishing death resulted from accidental means. Consistently since Union Accident Co. v. Willis, 44 Okl. 578, 145 P. 812, L.R.A.1915D, 358, this rule has been stated:

'* * * where death or injury has resulted from one of the excepted causes enumerated in the policy, the onus both of averment and proof in such regard rests upon he insurer. * * *'

We observe nothing in McCarty, supra, which provided any change in this rule. See also General Accident, etc. Corp., Ltd. v. Hymes, 77 Okl. 20, 185 P. 1085, 8 A.L.R. 318. Also see authorities cited in Pacific Ind. Co. v. Kohlhase, 9 Ariz.App. 595, 455 P.2d 277, at p. 279, reflecting general adherence to this rule.

Defendant's principal argument for reversal is based upon alleged insufficiency of...