Sullivan v. Metropolitan Life Ins. Co.

• Decision Date: 23 February 1934
• Docket Number: 7169.
• Citation: 29 P.2d 1046,96 Mont. 254
• Parties: SULLIVAN v. METROPOLITAN LIFE INS. CO.
• Court: Montana Supreme Court

29 P.2d 1046

96 Mont. 254

SULLIVAN v. METROPOLITAN LIFE INS. CO.

No. 7169.

Supreme Court of Montana

February 23, 1934

Rehearing Denied March 3, 1934.

Appeal from District Court, Silver Bow County; Frank L. Riley Judge.

Action by Pernie Sullivan against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant appeals.

Remanded with direction.

Charles R. Leonard and W. D. Kyle, both of Butte, for appellant.

H. L Maury and A. G. Shone, both of Butte, for respondent.

ANDERSON Justice.

This action was brought to recover on what is equivalent to a double indemnity provision of three life insurance policies by plaintiff, the beneficiary named therein.

James J. Sullivan at the time of his death on July 19, 1932, was the insured in these policies, dated, respectively, October 4, 1920, May 19, 1924, and March 17, 1930; the amount of the insurance on these policies was, respectively, $444, $168, and $240. The face amount of each of these policies was paid subsequent to his death and before the commencement of this action.

The defendant company, on January 2, 1929, by voluntary announcement in writing, gave the insured under these policies certain additional beneficial provisions, which writing became part of each of the policies in question. The pertinent portions thereof are as follows: "Upon receipt of due proof that the insured, after attaining the age of 15 and prior to attaining the age of 70, has sustained, after the date of this policy, bodily injuries, solely through external, violent and accidental means, resulting, directly and independently of all other causes, in the death of the insured within ninety days from the date of the bodily injuries, *** the company will pay in addition to any other sums due under this policy and subject to the provisions of this policy an accidental death benefit equal to the face amount of insurance then payable at death, except that if such bodily injuries are sustained by the insured while employed in or on the premises of any open pit or underground mine *** shall be only one-half of the face amount of insurance then payable at death. *** No accidental death benefit will be paid if the death of the insured is the result of self-destruction, whether sane or insane, nor if death is caused or contributed to, directly or indirectly, or wholly or partially, by disease, or by bodily or mental infirmity."

The insured was employed as a watchman for a number of years by the Anaconda Copper Mining Company, on the Modoc Extension mining claim, on which were located precipitating tanks and other surface improvements. Underground mining operations were engaged in on the particular claim, but there was no pit or shaft on the claim where the insured was employed connecting with the underground workings. The mining operations on the claim were conducted from a shaft or shafts located on other properties of the mining company. The workings on the claim in question were reached by underground tunnels and drifts from other mining claims.

On June 14, 1932, the insured was to report for duty at 10 o'clock p. m. During the evening preceding he was assisting his son and friends of the latter in the construction of a tennis court near their homes, performing manual labor. At this time the insured was 64 years of age. The evidence is in dispute as to whether his health prior to that date had been good. However, he had not required medical attention. It appears that on this evening shortly before 10 o'clock the insured left home in company with his son and his two friends who were desirous of securing some pipe to be used as posts for the supports of a tennis net on the court then under construction and lime to be used in the preparation of the same. It was thought these materials could be obtained on the claim where the insured was performing the duties of watchman. These parties left the home of the insured and stopped at the gateway to the Leonard mine, where the father left the automobile, as it was necessary for him to report at this mine for duty; it being contemplated that he would walk across the inclosure of the Leonard mine and meet his son and companions at the precipitating tanks, or near there, located on the Modoc Extension claim. The other occupants of the automobile proceeded over a different route from that pursued by the father to reach the precipitating tanks, consuming, as was testified, about five minutes in this operation. On arriving at the appointed place, they left the automobile some little distance from the tanks and proceeded to enter what is described as a "shack," to await the coming of the insured. To reach this point the insured had to travel a distance of 1,700 feet; over this route the elevation increased 150 feet. The son remained in the "shack," as testified to by him on direct examination, not over ten minutes, and on cross-examination he said he remained there for about two minutes. Thereupon he left the "shack" and found his father lying on top of a piece of sheet metal, which was described as resting one end on the ground and the other end on a railroad track or ties about ten inches above the ground. This piece of sheet metal was testified to as having been of the following dimensions: Four and one-half feet long, one-half foot wide and one-half inch thick. The insured, when found, was lying face downward and attempting to arise. The son turned him over. He was permitted to testify over objection that his father said, immediately thereafter, "I fell." The son further testified that he then ran about 25 feet and called to his companions in the "shack," about 75 feet from where the insured lay, for assistance, ran back to his father who, he testified, over objection, immediately said: "I fell over this piece of sheet iron. I didn't see it." The two boys in the party with the son of the insured answered the call and assisted in placing the insured upon a platform in close proximity to the "shack"; they thereupon left the father and son together and proceeded for the automobile, and, in order to bring the automobile to the platform, some five minutes of time were consumed. During this interval, as testified to by the son, his father was sitting on the platform with his feet hanging toward the ground, and while sitting there he fell forward into his son's arms, and he let the father down onto the ground. About this time one Clyde Lucas and two other men passing by assisted in removing the insured into the "shack." After the departure of Lucas and his companions, the boys returned with the car, and the insured was removed to his home in the automobile. Dr. Person was called that night and found that the insured was suffering from a cerebral hemorrhage. Dr. Torkelson was called the day following and examined the insured. The insured died on June 19, 1932, from a cerebral hemorrhage.

It was the theory of the plaintiff on the trial of the case that the insured fell over the sheet metal, causing the cerebral hemorrhage. Dr. Torkelson testified that in his opinion the fall caused the hemorrhage, for the reason that the insured was not immediately rendered unconscious at the time he was found by his son, and expressed the belief that, had the hemorrhage preceded the fall, the rupture of the blood vessel in the brain of the insured would have been increased by the fall so as to render him immediately unconscious.

Dr. Person testified on behalf of the defendant, and expressed the opinion that the hemorrhage preceded the fall, and assigned as the principal reason for his conclusion that such hemorrhages usually occurred in such manner. He further testified that at the time of his examination the insured was suffering from high blood pressure which would have been higher before the rupture of the blood vessel occurred. It was generally conceded by the medical witnesses that the insured was suffering at that time from arteriosclerosis or hardening of the arteries. No autopsy was performed.

The trial of the case resulted in a verdict for plaintiff for the face amount of the policies. Judgment was entered accordingly. The appeal is from the judgment.

The defendant demurred generally to the complaint, which demurrer was overruled, and objection was made to the sufficiency of the complaint at the outset of the trial upon the ground that it did not state facts sufficient to constitute a cause of action, which objection was overruled. Defendant has assigned these rulings as error. It contends that, the plaintiff having failed to negative the exception, namely that, as provided by the policies, if the insured was employed in or on the premises of any open pit or underground mine, then the accidental benefit would be reduced one-half, the complaint was insufficient. The complaint did not negative this exception. Under it, if it applied, the defendant company was not relieved from all liability for accidental death, but its liability was reduced by one-half.

The rule is that the allegations of a complaint are sufficient as to substance if a cause of action is stated therein upon any theory. Reed v. Woodmen of the World, 94 Mont. 374, 22 P.2d 819, and cases there cited. If the plaintiff had, instead of negativing the exception, by appropriate allegation disclosed on the face of her complaint the fact that at the time alleged the insured was employed in or on the premises of an underground mine, the amount she might recover would be thereby reduced one-half, but nevertheless the complaint would state a cause of action, though for the lesser amount.

The general rule in actions on accident insurance policies is that the person seeking to recover need not allege that the death or injury of the insured did not result from any of the causes which by the...