ZUCKERMAN v. UNDERWRITERS AT LLOYDS LONDON

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District Court of Appeal, Second District, Division 1, California.

ZUCKERMAN et al. v. UNDERWRITERS AT LLOYDS, LONDON.*

Civ. 19007.

Decided: December 02, 1952

Francis J. Gabel and Henry F. Walker, Los Angeles, for appellants. Adams, Duque & Hazeltine, Los Angeles, Waller Taylor II, Los Angeles, of counsel, for respondent.

By the instant action, plaintiffs seek to recover as beneficiaries under two personal accident insurance policies in which George H. Francis, deceased, was named, the assured. Both policies were for the period October 11, 1949, to October 11, 1950. One was for the capital sum of $100,000, payable to the law firm of which the insured was a member; the second was for $75,000, $50,000 payable to said law firm, and $25,000 to James H. Francis, brother of the assured.

The policies are identical except for the amounts, and provide ‘If at any time during the currency of this certificate the assured shall sustain any accidental bodily injury caused by accident * * * which shall, solely and independently of any other cause within six (6) calendar months from the date of the accident causing such bodily injury, occasion the disablement * * * or * * * the death of the assured’, the underwriter shall pay to the assured or his beneficiaries the amounts set forth in the schedule of compensation, the compensation for death being 100% of the capital sum.

‘Bodily injury’ in addition to that which is caused by accident is defined to include ‘death by exposure to the elements or physical exhaustion * * * resulting from an accident or mechanical or other failure of anything used as a means of conveyance or transportation.’

The policies also contain an exclusionary clause which provides among other things: ‘This certificate does not cover death * * * directly or indirectly caused or contributed to by intentional self-injury, disease or natural causes.’ Immediate notice to insurer is required in the event of death, and the policies give to insurer the right to have an autopsy or post-mortem examination to ascertain the true cause of death.

On March 16, 1950, while the policies were in full effect, the assured died under the following circumstances:

Early on Friday morning, March 10th, Mr. Francis left his apartment in Los Angeles and joined a group of friends for a fishing trip in the Bay of Los Angeles, Mexico. They flew in a chartered plane from Los Angeles International Airport to Walker's Camp located at Baja California, Mexico. There were about a dozen men in the party, including the pilot of the plane, Mr. Stilbert. Most of them were either lawyers or insurance investigators and executives.

Several members of the party went fishing that afternoon. Mr. Francis stayed in camp. Some of the freshly caught fish were prepared for dinner. All retired about 8:30 and ‘slept outside without covers.’ Mr. Francis slept in a bed on the back porch of the house. They arose early Saturday morning, had breakfast and left the camp before sunrise, i. e., at 4:30 or 5:00. There were four rowboats or skiffs, known as 14-foot Pangas, equipped with outboard motors. Mr. Francis accompanied Messrs. Harrison and Stilbert in a 14-foot boat equipped with two motors. The weather was fine and the water calm when they started out. The boats proceeded to different fishing places. There were several islands in the bay, the first of which was five or six miles from the mainland. After passing this island the boats were no longer in sight of each other.

Between 9:00 and 10:00 o'clock that Saturday morning, the wind camp up and continued to blow all day making it impossible to fish. All tried to get back to camp but only one boat was successful. The other three managed with great difficulty to reach Smith Island which was about eight or ten miles from the mainland.

The Francis, Harrison and Stilbert boat was the last to land. That group fished around the various islands and between 6:30 and 7:00 that morning, Mr. Francis hooked and fought a big fish for 45 minutes before losing it. When the wind came up around 9:00 o'clock the water was very rough in the open. They fought their way to Smith Island. They were wet with spray, the motors gave out and it was necessary to resort to oars to keep the boat from capsizing. Both Francis and Stilbert took turns rowing, Mr. Francis for the last 1,000 or 1,500 feet. During this time the velocity of the wind was 35 to 40 miles per hour. They landed their boat on the island about noon. Mr. Francis assisted in pulling the boat ashore. He was wringing wet and was perspiring and panting from the exertion. He lay down and napped for a while. The others wandered around and finished eating their lunches. The storm continued and by late afternoon it became apparent that they would have to remain overnight. They scoured the island for shelter and firewood. However, the island was rocky and barron of vegetation, and they found only small pieces of driftwood and a log. They found a cave and near it an indentation or smaller cave.

It appears from the testimony of the participants that a miserable night was spent on the island with little rest for any one. The night was cold and the men inadequately clad. During the night they had to move the boats three or four times from the rising tide. The wind blew spray into the cave. A fire was lighted in the early morning hours on Sunday.

About daybreak on Sunday, March 12, 1950, the wind subsided and they returned to the Walker camp. There was evidence that Mr. Francis appeared to be exhausted and complained about not feeling well. Mrs. Walker testified that when they reached the camp, ‘They were a pretty sorry looking lot. They were cold and wet and hungry and had had a great deal of exposure. I remember him (Mr. Francis), because he seemed particularly chilled, and we built a big fire in the fireplace and I remember he sat as close to the fire as he could get with a sweater around him.’

They left around 1:00 o'clock and arrived in Los Angeles about 7:00 o'clock that evening. Although Mr. Stilbert, the pilot, testified that at no time did Mr. Francis appear to him to be ill, there was other testimony that he kept himself wrapped in blankets; was lying down in the plane all the way to Los Angeles, and appeared to have a chill. Three of his companions took him to his apartment in Los Angeles where they divided a freezer of fish. Mr. Francis took a hot shower and went to bed and was asleep when they left. On Monday morning, Mr. Francis was ‘sneezing, coughing, blowing his nose’, and had all the symptoms of a bad cold. He remained home and called his secretary saying he did not feel well. On Wednesday he called her again; said he was ill and was going to the desert to get rid of his cold. He also called his doctor. He told him he had been fishing and caught cold, and was going to the desert to bake out. The doctor prescribed aureomycin and some sleeping capsules which he directed the druggist to deliver to Mr. Francis.

Mr. Messer, an associate of decedent, saw him on Thursday morning and again at noon. He testified that Mr. Francis' cold appeared to be very bad; that he complained about it and said he was going to his brother's place in the desert to bake out. Mr. Francis told him, ‘I'll make it as far as Victorville and then I'll have a driver from there on.’ On Wednesday, he made arrangements with Mrs. Knutson, a friend of his in Victorville, to drive him from that place to Tecopa where his brother lived. Mrs. Knutson prepared for the trip and waited for him on Thursday. He did not come. However, around 5:30 on Thursday afternoon, March 16th, he parked his car in a picnic ground near Deep Creek about 18 miles from Victorville. On Saturday morning, Mrs. McInnis who lived near the picnic ground reported the parked car to constable Powell. A deputy sheriff of San Bernardino County made an investigation and found that Mr. Francis had died while lying in the back seat of the car. He was lying on his back with a small pillow under his head. His right arm was across his body; his collar, tie and clothes were intact. The keys to the car were in his pocket, as was $1.04; the windows were closed; a blanket and a small bag of wearing apparel were in the trunk of the car. An empty bottle of ‘Murine for the Eyes' was in the glove compartment. Nothing else was found.

The body was embalmed ‘by the gravity pressure method’ and on Monday, March 20th, an autopsy was performed by Dr. Baird, autopsy surgeon for San Bernardino County. The certificate of death signed by him listed the cause of death as follows:

‘Disease or condition directly leading to death: (A) Broncho-pneumonia.

‘Antecedent Causes. Morbid conditions, if any giving rise to the above cause (A) stating the underlying cause last:

‘Due to (B) Edema of brain Due to (C) Acute alcoholism.’

On March 22nd the body was cremated.

Within ten days the policies were discovered among decedent's papers in his law office and on March 29, 1950, notice of the death and claim on behalf of the beneficiaries to the proceeds of the policies were given to the insurer. On April 12, 1950, defendant's representative Van Deusen by letter to Mr. Gabel, plaintiffs' attorney, requested permission to perform a post-mortem examination of the body pursuant to the provisions of the policies. By his letter to Mr. Van Deusen, dated April 25, 1950, Mr. Gabel informed him that the body had been cremated.

At the trial, decedent's divorced wife, Flossie D. Francis, who was on friendly terms with him from 1947 until the time of his death, testified that he was a heavy drinker; that there was no limit to his drinking; that ‘he would drink a quart of liquor and maybe a dozen or a dozen and a half bottles of beer in one day.’ That after 1947 he still drank and was not well at times, ‘but he still couldn't abstain from liquor.’ That only persons who knew him ‘intimately’ could detect any signs of alcoholism, since he carried liquor very well. She also stated that the last time she saw him just about two weeks before his death, he was still drinking and consumed a pint bottle of bourbon. He was also an habitual user of sleeping pills. Mrs. Francis related that after 1947 and until shortly before his death, Mr. Francis was ‘haggard and he got older looking’ and did not look well during the last months of his life. He complained of pain in his shoulder and told her something was wrong.

Mrs. Frances C. Herrod, who had known decedent well from 1948, testified that he was a heavy but sociable drinker, taking as many as ten highballs in an evening, but that he would periodically cease drinking for a few months and then resume. That during the last months of his life he did not appear well, became emotionally disturbed and tired and would ‘just sort of fade away from you.’

Contrary to this testimony, several friends of decedent testified on behalf of plaintiffs that he was in the best of health; that he rarely drank and never to excess at any time. One of them was Mr. Paul Lemley, who stated that during the times he had seen Mr. Francis outside of the office during a fourteen month period he had never seen him under the influence of intoxicating liquor. And Mr. John S. Messer, a friend, room-mate, and at one time a subordinate of Mr. Francis in the Veterans' Administration, testified that he never saw Mr. Francis take a drink, never smelled liquor on his breath, and never saw any evidence of any liquor in the apartment which he shared with Mr. Francis.

Other witnesses testified on the subjects of drinking, non-drinking and the state of decedent's health, but enough has been stated to indicate the highly conflicting character of the evidence thereon.

Mr. Francis was ill in 1948. He consulted Dr. Nolan, who was a social acquaintance as well as medical adviser. An electrocardiogram taken at that time made Dr. Nolan suspicious of a possible first degree heart block. So he sent him to Dr. Feinberg, a heart specialist who took another electrocardiogram. The heart was found to be within normal limits and other examinations disclosed the heart to be within normal range. Dr. Hayes, defendant's expert, interpreted these electrocardiograms as showing a heart block of the first degree, and definitely ‘beyond the range of normal.’

Dr. Baird, the autopsy surgeon, stated on cross-examination that he put ‘acute alcoholism’ on the death certificate ‘solely because of the statement of Dr. Bennett (the mortician) that he had known this man as an alcoholic drinker.’ That he found nothing in his examination of the body to indicate drinking. Also, that his diagnosis of edema of the brain ‘was made on fact that this condition results either from alcohol or injury and in this case there was no evidence of injury.’ The doctor further testified that he cut cross-sections of the coronary arteries with a sharp knife at intervals of a quarter of an inch, but found no evidence of a prior thrombosis or embolism of any kind.

Plaintiffs' expert witness, Dr. Newbarr, Chief Autopsy Surgeon for Los Angeles Coroner's office, testified that the coronary arteries were usually sectioned at intervals of one-eight of an inch and sometimes even one-sixteenth of an inch so as not to miss an area of arteriosclerosis. He also stated that it was possible that at a quarter of an inch interval, Dr. Baird might have missed such an area consisting of degenerative change causing a coronary thrombosis.

This witness in answer to a hypothetical question gave the opinion that the cause of death was bronchial pneumonia; ‘that bronchial pneumonia is a common sequela of a history such as we have here: exposure, exhaustion, chilling, upper respiratory infection, a cough, and a bronchial pneumonia. * * * There is nothing in the history of this case or in the autopsy findings which show that alcohol was a causative factor in any way whatsoever.’

Dr. Alvin G. Foord, Director of Laboratories and Medical Research at the Huntington Memorial Hospital in Pasadena, testified as a medical expert for defendant. After examining the various exhibits and in reply to a hypothetical question, he gave as his opinion that George Francis did not die of broncho pneumonia. He did not think that any one could diagnose with accuracy a broncho pneumonia in an embalmed lung and be sure about it without microscopic studies; and that the embalming fluid might have had such an effect upon the air sacs of the lung as to produce a picture very much like pneumonia. He also went on to say that there was another reason ‘I don't believe this man died of pneumonia, because if you have ever seen a patient die of pneumonia you have seen a patient who gasps for breath. * * * So I would think it would be very—very unique for a man to be lying prone (sic) in a car with his tie in place, with the upper button of his shirt unopened, lying calmly with the windows shoved up. I think most people with pneumonia cry for air, they want the windows open, they want the tie off, they want no hindrance to respiration.’ This witness gave his opinion that the primary cause of death was a ‘condition which led to a circulatory collapse and edema and congestion of the lung.’

As his reasons for that opinion, this witness stated ‘We have described already the congestion in the dependent portions of the lungs and the edema which is formed. * * * Primarily it occurs, of course, in acute heart failure. The lungs fill up. * * * Depressant drugs—the tone is all taken out of the blood vessels, the heart tone decreases, stagnation occurs, then outpouring of fluid into these air sacs. Such examples as sleeping pills; that is the classical finding of all these many people who die from an overdose of sleeping pills. Many chemical substances, among which is alcohol * * * I could run through a list of many poisons which can do it.’

He further testified that the ‘material in this hypothetical question does not substantiate the cause of death from exposure to the elements resulting from an accident or mechanical or other failure of anything used as a means of conveyance or transportation’; but that he was of the opinion that death was directly or indirectly caused or contributed to by intentional self-injury, disease or natural causes.

From the evidence thus adduced, the jury brought in its verdict in favor of defendant underwriter. From the judgment which followed, plaintiffs appeal.

This appeal is grounded upon alleged error of the trial court in giving and refusing to give certain instructions to the jury.

I. The court refused to give plaintiffs' requested instruction which, it is here asserted, would have correctly informed the jury that the burden rested upon defendant insurer to prove, by a preponderance of the evidence, its claim that intentional self-injury directly or indirectly caused or contributed to the death of insured. But the court gave defendant's requested and diametrically opposed instruction that ‘Plaintiffs have the burden of proving by a preponderance of the evidence that the death of George H. Francis was not directly or indirectly caused or contributed to by intentional self-injury.’

As hereinbefore mentioned, the insuring clause in the policies specifically insures against death resulting from ‘accidental bodily injury caused by accident solely and independently of any other cause.’ The policies exempt liability of insurer in the event of death ‘directly or indirectly caused or contributed to by intentional self-injury, disease or natural causes.’

By its answer, defendant pleaded as separate and affirmative defenses that death was caused by disease or by natural causes. And by an amendment to the answer, it added as an affirmative defense that death was caused by intentional self-injury.

Plaintiffs' theory of the case was that Mr. Francis died from exposure to the elements and physical exhaustion which resulted from an accident.

As stated in an annotation in 142 A.L.R. 746, ‘The rule supported by the over-whelming weight of authority, in cases involving accident policies or other policies with accident features containing express conditions or exceptions excluding or limiting the coverage of the policy as to an injury or death which would otherwise be within such coverage, is that the burden of proving that the insured's injury or death was within such conditions or exceptions is on the insurer, and that the plaintiff is not under any burden of negativing application of such exceptions or conditions.’

In defense of the proposition that the burden rested on plaintiffs herein to prove that the death was not caused by intentional self-injury, defendant cites the cases of Kellner v. Travelers' Ins. Co., 1919, 180 Cal. 326, 181 P. 61 and Ogilvie v. Aetna Life Ins. Co., 1922, 189 Cal. 406, 209 P. 26, 26 A.L.R. 116. In both of these cases involving accident insurance policies with exclusion clauses similar to those here in question, it was held error to instruct the jury that the burden rested on defendant to show by a preponderance of the evidence that disease was a proximate cause of death of the assured. And that, ‘The absence of disease contributing to death was as much a part of the plaintiff's case under the contract, as the affirmative showing of the occurrence of an accident producing injury and of death following such injury.’ Kellner v. Travelers' Ins. Co., supra [180 Cal. 326, 181 P. 63].

However, in 1945, the Supreme Court in Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305, 309, 163 P.2d 689, 691, held that ‘the presence of pre-existing disease or infirmity will not relieve the insurer from liability if the accident is the proximate cause of death; and that recovery may be had even though a diseased or infirm condition appears to actually contribute to cause the death if the accident sets in progress the chain of events leading directly to death, or if it is the prime or moving cause. (Citation of authorities.)’

And in Happoldt v. Guardian Life Ins. Co., 90 Cal.App.2d 386, 400, 203 P.2d 55, 63, this court following the decision in the Brooks case held that refusal of the trial court to give instructions ‘that plaintiff had the burden of proving by a preponderance of the evidence that death did not result directly or indirectly from illness or disease of any kind.’—was not erroneous. Also, that ‘Under the Brooks case * * * the plaintiff is required to prove that the accident is the proximate cause of death.’

The instructions here under consideration have reference to ‘intentional self-injury’ or suicide, not disease.

Appellants rely upon the old case of Postler v. Travelers' Ins. Co., 173 Cal. 1, 158 P. 1022, 1023. That case involved two accident policies insuring ‘against bodily injuries effected directly and independently of all other causes through external, violent, and accidental means (suicide, whether sane or insane, is not covered).’ There was some evidence that tended to show that insured had himself fired the shot that ended his life. It was there held, 173 Cal. at page 3, 158 P. at page 1023, that on the issue of suicide, the burden rested upon the defendant insurer, citing Dennis v. Union Mutual Life Ins. Co., 84 Cal. 570, 24 P. 120. On the issue as to whether or not the death of insured had been effected through accidental means, the burden rested on the plaintiff. 173 Cal. at page 6, 158 P. at page 1024. See, also, Bebbington v. California Western States Life Ins. Co., 30 Cal.2d 157, 159, 180 P.2d 673, 1 A.L.R.2d 361.

In the instant case the burden of proof rested on defendant and not on plaintiffs. The given instruction erroneously placed that burden on plaintiffs. The error was emphasized by refusal to give plaintiffs' requested instruction which correctly stated the law. See Miller v. Peters, 37 Cal.2d 89, 95, 230 P.2d 803; Akers v. Cowan, 26 Cal.App.2d 694, 699, 80 P.2d 143. Moreover, the error was magnified by re-reading the instructions to the jury during its deliberations.

The evidence in this case is not only sharply conflicting but is so nearly evently balanced that the error in instructing on the burden of proof was distinctly prejudicial, since it may well have been the deciding factor relied upon by the jury in reaching its verdict.

II. The foregoing also disposes of appellants' Point VI: That the trial court erred in instructing that the burden of proof was upon plaintiffs to prove that death was not caused or contributed to by disease.

III. Defendant's instruction 21, it is asserted, assumed as an established fact that Mr. Francis continuously before and after the accident was suffering from some self-injury, disease or natural cause, whereas the evidence was either to the contrary or was directly conflicting. ‘Instructions which assume facts that are controverted in the case constitute reversible error.’ Connell v. Clark, 88 Cal.App.2d 941, 948, 200 P.2d 26, 30, citing Scandalis v. Jenny, 132 Cal.App. 307, 314, 22 P.2d 545. Whether insured's death was caused by intentional self-injury, disease or natural causes was put in issue by defendant's answer and the amendment thereto.

IV. It is also urged that it was error for the court to refuse to instruct upon the difference between ‘accidental death’ and ‘death by accidental means,’ and that the policies here covered the broader ‘accidental death.’

An examination of the instructions given on that subject disclose that the court instead of instructing according to the ideas of the parties, gave instructions containing the language used in the insurance policies themselves. This was sufficient.

Because of the conclusions reached, it is not deemed necessary to unduly extend this opinion for the purpose of passing upon other points raised in appellants' briefs.

For the reasons stated, the judgment is reversed and the cause remanded for a new trial.

DRAPEAU, Justice.

WHITE, P. J., concurs. DORAN, J., concurs in the judgment.