Valenta v. Life Ins. Co. of North America

• Decision Date: 29 March 1972
• Docket Number: No. 8793,8793
• Citation: 196 N.W.2d 393
• Parties: Marie C. VALENTA, also known as Mrs. Francis Valenta, Plaintiff and Respondent, v. LIFE INSURANCE COMPANY OF NORTH AMERICA, a corporation, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 393

196 N.W.2d 393

Marie C. VALENTA, also known as Mrs. Francis Valenta Plaintiff and Respondent, v. LIFE INSURANCE COMPANY OF NORTH AMERICA, a corporation Defendant and Appellant.

Civ. No. 8793.

Supreme Court of North Dakota.

March 29, 1972.

Rehearing Denied May 1, 1972.

Syllabus by the Court

1. A motion for judgment notwithstanding the failure of the jury to agree on a verdict calls for a review of the grounds assigned in support of the motion for a directed verdict.

2. The only question for review on a motion for judgment notwithstanding the failure of the jury to agree is whether the motion for a directed verdict should have been granted if the trial court had not been prohibited from granting it because of Rule 50(a), N.D.R.Civ.P.

3. A motion for judgment notwithstanding the failure of the jury to agree should not be granted unless the moving party is entitled to a verdict as a matter of law.

4. A motion for judgment notwithstanding the failure of the jury to agree admits the truth of the evidence against the movant, and the inferences and conclusions which may reasonably be deduced from such evidence which are favorable to the party opposing the motion.

5. A motion for judgment notwithstanding the failure of the jury to agree does not go to the weight of the evidence.

6. An accident insurance policy issued in insured against loss of life from accidental bodily injuries, resulting directly and independently of all other causes, and which excludes loss of life caused by or resulting from illness or disease, includes within its coverage an accidental injury which stands out as the predominating factor in causing the death, by putting into motion to train of events which brings about the result without intervention of any force from a new and independent source.

7. The fact that insured was afflicted with a pre-existing heart disease does not preclude coverage under an accident policy insuring against death, caused directly and independently of all other causes, from accidental bodily injury, and excluding from coverage loss caused by or resulting from illness or disease, even though the immediate cause of death is shown as being heart failure, if the evidence establishes that the accident caused bodily injury which was the predominating factor in producing death by setting in motion a train of events which brought about the heart failure without the intervention of any force from a new and independent source. In such event, the accidental injury may be regarded as the direct, proximate and sole cause of death.

Wattam, Vogel, Vogel & Peterson, Fargo, for defendant and appellant.

Conmy, Feste, DeMars & Bossart, Fargo, for plaintiff and respondent.

TEIGEN, Judge.

The defendant (hereinafter insurance company) has appealed from an order denying its motion for judgment notwithstanding the failure of the jury to agree on a verdict.

This is an action brought by the widow, designated and named as the beneficiary of an accident insurance policy insuring F. C. Valenta against accidental bodily injury and death. The issues were tried and submitted to a jury. At the close of all the testimony the insurance company moved for a directed verdict on the ground that the plaintiff had failed to prove that Mr. Valenta's death resulted from accidental injury, directly and independently of all other causes, and that the evidence established that Mr. Valenta was afflicted with a disease at the time of his death and that this disease caused his death. Counsel for the plaintiff resisted this motion and it was denied. The case was submitted to the jury; however, the jury was unable to agree on a verdict and was discharged.

The insurance company thereupon moved for judgment notwithstanding the disagreement of the jury, under Rule 50(b) of the North Dakota Rules of Civil Procedure, in accordance with its motion for directed verdict. The motion was denied by the trial court and the insurance company has appealed.

A motion for judgment notwithstanding the failure of the jury to agree on a verdict calls for a review of the grounds assigned in support of the motion for a directed verdict. Hanson v. Fledderman, 111 N.W.2d 401 (N.D.1961); Leach v. Kelsch, 106 N.W.2d 358 (N.D.1960).

The only question for us to review is whether the motion for directed verdict should have been granted had the court not been prohibited from granting the same under Rule 50(a), N.D.R.Civ.P.

The scope of review from the court's order denying the motion for judgment notwithstanding the disagreement of the jury is the same as if the motion were one for judgment notwithstanding the verdict, and the motion should not be granted unless the moving party is entitled to judgment on the merits as a matter of law. Bartholomay v. St. Thomas Lumber Company, 148 N.W.2d 278 (N.D.1966); Leach v. Kelsch, Supra; Olson v. Cass County Electric Co-operative, Inc., 94 N.W.2d 506 (N.D.1959).

A motion for judgment notwithstanding the verdict admits the truth of the evidence against the movant and the inferences and conclusions which may reasonably be deduced from such evidence which are favorable to the party opposing the motion. Linington v. McLean County (two cases), 146 N.W.2d 45 (N.D.1966), and 161 N.W.2d 487 (N.D.1968); Lindenberg v. Folson, 138 N.W.2d 573 (N.D.1965); Larson v. Meyer, 135 N.W.2d 145 (N.D.1965).

The motion does not go to the weight of the evidence and the motion should not be granted unless the moving party is entitled to a judgment as a matter of law. Johnson v. Frelich, 165 N.W.2d 343 (N.D.1969); Pocta v. Kleppe Corporation, 154 N.W.2d 177 (N.D.1967).

It is undisputed that Mr. Valenta, at the time of his death, was an insured under an accident and disability insurance policy which his employer, Schultz and Lindsay Construction Company, purchased from the defendant insurance company. The policy covered certain losses resulting from accidental bodily injuries:

'Subject to all of the Exclusions, Provisions and other terms of this policy, the Company hereby insures the persons described in Schedule I, * * * against loss resulting directly and independently of all other causes from accidental bodily injuries which arise out of the hazards described in Schedule II and are sustained by the Insured during the term of this policy * * *'

Part II of this policy, entitled 'EXCLUSIONS', provides, in part:

'This policy does not cover loss caused by or resulting from any or more of the following:

'D. Illness, disease, * * *'

The insured Valenta died July 24, 1969, while the policy was in effect. The insurance company refused to pay the plaintiff, as beneficiary under the policy. It specifically denied that Valenta's death resulted 'directly and independently of all other causes from accidental bodily injuries' and claimed that his death was caused by a disease, or that the disease contributed to his death.

It appears that Mr. Valenta, who was 51 years of age, on the evening of July 14, 1969, was helping his son carry a water-soaked rug from the basement of the Valenta home which had become flooded with about four inches of water. As they started for the stairway, Mr. Valenta slipped and fell, striking his left side on the concrete basement floor. He complained of severe pain and, after several hours, was taken to the emergency room of the hospital where X rays were taken. The X rays revealed a recent fracture of his left eighth and ninth ribs. He was treated for broken ribs and sent home. The pain continued and, in the early morning hours of July 16, Mrs. Valenta called a doctor. Mr. Valenta was then taken by ambulance to the hospital where he was place in an oxygen tent. He apparently had a great deal of distress from pain in his left chest and had difficulty in breathing. A tracheostomy was performed, which seemed to improve his breathing. However, during the evening of July 16, he suffered a cardiac arrest. His heart was resuscitated. During the night of July 18 he had three additional cardiac arrests but each time his heart was resuscitated by external cardiac massage. He expired at 11:05 a.m. on July 24, 1969, approximately ten days after his fall.

After being hospitalized Mr. Valenta was attended by Dr. Barth. Following Mr. Valenta's death, Dr. Barth requested an autopsy. The autopsy was performed by Dr. Lunseth with Dr. Barth present throughout. Dr. Barth completed the death certificate. He noted on the certificate that the immediate cause of death was an acute myocardial infarction with cardiac arrest, with the onset approximately two weeks prior to death. He listed pneumonia and rib fractures as conditions which gave rise to the immediate cause of death. He also listed arteriosclerotic heart disease as a significant condition contributing to death.

There was considerable medical testimony introduced by both parties.

The medical history of the insured Valenta indicated that when he was eighteen years of age he contracted rheumatic fever. It caused endocarditis, which is explained as being an inflammation of the lining of the heart, which left Mr. Valenta with a heart murmur. He was classified as 4--F during World War II.

In 1962, when Mr. Valenta was forty-four years of age, he consulted with doctors at a medical clinic. He complained of a numbness over the back of his right hand and, when under pressure, felt heart palpitations. X rays taken at that time disclosed a straightening of the left heart border and the possibility that he was suffering from some chromic inflammatory disease. His cholesterol count was 338 as compared to the normal range of 140 to 200. The electrocardiogram was abnormal with the cardiologist noting that the readings suggested he had ischemia, which meant that the heart muscle was receiving an inadequate blood supply. He was placed on a cholesterol-lowering diet, advised to drink no alcohol, and was prescribed medication in the form of a vitamin.

It appears that on the basis of this history and the...