BROOKS v. METROPOLITAN LIFE INS CO (1945)

Plaintiff seeks a judgment in the sum of $10,000 against defendant insurance company, claiming that her deceased husband met his death by violent and accidental means in a burning building. A jury returned a verdict in favor of defendant but the trial court granted a motion for a new trial on the ground of insufficiency of the evidence. From the order granting a new trial defendant has appealed.

The material portions of the policy which are applicable to the issues of the present litigation are as follows: ‘Metropolitan Life Insurance Company * * * hereby insures Sabetary Beraha (Brooks) * * * subject to the provisions and limitations herein contained, in the principal sum of Five Thousand Dollars * * * against the results of bodily injuries sustained while this policy is in force and caused by violent and accidental means, to wit:—* * * For loss of life * * *. The Full Principal Sum Above Specified. * * * Double Indemnities: If such injuries be received * * * in consequence of the burning of any building in which the insured shall be at the commencement of the fire, the amounts payable for any of the losses enumerated in the preceding clauses shall be doubled. * * * Risks Excluded: This insurance shall not cover suicide or any attempt thereat while sane or insane; * * * nor shall it cover accident, injury, disability, death or any other loss caused wholly or partly, directly or indirectly, by disease or bodily or mental infirmity or medical or surgical treatment therefor.’ In its answer defendant interposed several defenses, among them that the insured committed suicide, a defense which in our view of the evidence is the only one that need be considered.

There was no substantial conflict in the evidence. About 7 o'clock a. m. on November 19, 1941, the insured, Mr. Brooks, suffered second and third degree burns which resulted in his death. For more than two years prior to his death Brooks had been suffering from rectal cancer, which was malignant and incurable. He suffered excruciating pain to such an extent that he was given increasingly large amounts of morphine in order to be relieved momentarily. He had undergone a major operation in the fall of 1939, at which time the lower portion of his intestines and rectum were removed, requiring the use of a permanent opening in his abdomen. Some months before his death he was forced to take to his bed although he was still able to and did get up and walk about the house. He was constantly attended by nurses both day and night. At times he appeared to be irrational for short intervals and was not permitted to shave outside the presence of nurses.

The plaintiff, the widow of decedent, had worked in decedent's flower shop as an assistant until their marriage on January 23, 1941. At the time of the marriage she knew of his physical infirmities and after the marriage and up to the time of the death of decedent she continued to work in the flower shop. After their marriage Mr. and Mrs. Brooks lived in the north half of a duplex home in the vicinity of the flower shop, the landlord living in the other half.

It was the custom of Mrs. Brooks to stay at home in the morning until the day nurse, Mrs. McCulley, arrived. But on the morning of November 19, she left earlier than usual, before 7 o'clock and prior to the arrival of the day nurse, because she had to be at the flower shop to pick up a floral piece. Shortly before going off duty at 7 o'clock a. m. on November 19, Mrs. Collahan, the night nurse, was in the kitchen having a cup of coffee when Mr. Brooks called from the bedroom and said, ‘Mrs. Callahan it is time you were going’. She noted by her watch that it was fifteen minutes before 7 o'clock. Brooks had never before asked her to leave and she had never left before 7 o'clock on any other morning. When Mrs. Callahan left Brooks was lying quietly in his large bed with his eyes shut and when she said she was leaving and would see him again he replied by merely shaking his head. When she left the house she noted that Mrs. Brooks had already gone and that the front door was unlocked. She did not lock it but left it unlocked for the day nurse. When the night nurse and Mrs. Brooks left the house on the morning of November 19, the bedding on Mr. Brooks's bed and the nurse's cot was neatly arranged; there was no pile or accumulation of papers or magazines on the floor at any place in the bedroom; the living room cushion was not on the bedroom Morris chair; the bedroom windows were not entirely closed; the blinds and curtains throughout the house and in the bedroom were not closed or drawn; and the small gas heater was lighted and burning.

Mrs. McCulley arrived at ten minutes before 8 o'clock but found that the front door was locked, an occurrence which was unusual because the door had always been unlocked when she arrived. When the landlord, Mr. Olson, was called to the front door by the day nurse he found that the front door was locked and that he could not open it despite the use of two keys. He opened the front window and climbed in under the drawn blind to open the door from the inside. Olson found all the windows closed and the blinds drawn. He opened one of the windows and played water through a hose into the smoke-filled bedroom. When the smoke cleared he saw that Brooks was apparently dead and was lying on the small night nurse's cot. The bedding which had been neatly arranged on the bed and cot an hour earlier was found to be piled up on the head of the bed, on the floor between the cot and the bed, alongside the cot and on the cot. It was smoldering and on fire, as was the living room cushion which had been brought from the living room into the bedroom and put on the Morris chair adjacent to the cot. The head of the bed and the cot were both on fire immediately adjacent to Brooks' body, which was charred and burned from the waist down.

Shortly after the discovery of Brooks' body by Mr. Olson and the nurse, representatives of the fire department arrived. From their testimony it appeared that the fire in the gas heater had been extinguished and a bottle, which had been half full of rubbing alcohol and which had been left on the dresser, was found in the waste basket. The bottle was empty but the odor of alcohol was noticeable in the burned debris in the charred area about the cot, and particularly in the upper portion of Brooks' night clothes and in the charred lower portion of his body. This alcoholic odor was identical with the odor coming from the empty bottle of rubbing alcohol. An analysis showed that the contents of the bottle consisted of inflammable rubbing alcohol. There were two distinct burns completely through the floor in the charred area underneath and immediately adjacent to the small cot. The bedding on the cot had burned around and under Brooks' body, especially from the midriff down. In the charred area on the floor there was an amount of the burned debris of light texture and there was a large amount of unburned and partially burned papers underneath the cot and some badly charred paper was piled on the small cot with Brooks' body.

During the night before his death Brooks said to the night nurse that he hated to die without leaving his widow more money and that he wanted to leave her well protected. A physician testified that he had permitted Brooks to have progressively large amounts of morphine and pentapon so that at the time of his death he was in such a state of narcosis that in his opinion he would not have had any great feeling of pain from fire.

Although it is unquestionably the rule that the granting of a motion for a new trial rests within the discretion of the trial judge and that an order granting a new trial will not be disturbed on appeal in the absence of a manifest abuse of discretion, it is thoroughly established that where there is no substantial conflict in the evidence and the evidence as a whole would be insufficient as a matter of law to support a verdict in favor of the moving party an order granting a new trial cannot be sustained. From an examination of the record before us we are satisfied that the evidence points unerringly and conclusively to suicide on the part of the decedent. No other reasonable conclusion can be reached. Some one must have locked the door, closed the windows and pulled the blinds, rearranged the bedding and papers and applied rubbing alcohol to decedent's body and to his clothing. It is impossible to rationally conclude that any person did this other than Mr. Brooks himself.

Respondent contends that she is entitled to rely upon certain disputable presumptions, such as the presumption of innocence of crime and that a person takes ordinary care of his own concerns. Appellant contends that these presumptions are not applicable to cases in which the issue is whether a party came to his death by accidental means, citing Postler v. Travelers' Ins. Co., 173 Cal. 1, 158 P. 1022. We do not regard this question of especial moment, however, for we are satisfied that the case comes within the rule that a disputable presumption is dispelled as a matter of law when the evidence is without substantial conflict, as in the present case, and is wholly irreconcilable with the presumption sought to be invoked. Smellie v. Southern Pacific Co., 212 Cal. 540, 299 P. 529.

Since the evidence would not support a judgment for plaintiff, it is ordered that the order granting a new trial be and it is reversed.

W. J. WOOD, Justice.

MOORE, P. J., and McCOMB, J., concur.