Pacific Mutual Life Ins. Co. v. Tetirick, Gdn.

WELCH, J. Plaintiff and defendant were in serious disagreement as to plaintiff’s claimed right to collect monthly disability payments on an insurance policy. At a conference on the matter each earnestly and vigorously presented his theory and contentions. The plaintiff insisted that the monthly payments be made and defendant insisted that the policy be canceled. No agreement was reached and plaintiff terminated the conference. Then plaintiff filed this suit, claiming in effect that he had'been convalescing from a nervous breakdown; that the defendant in the conference attempted intimidation and threats, paced up and down in the room, and talked loudly, and in a boisterous and obstreperous mariner; that on account of his physical and nervous condition the actions of defendant were seriously harmful to him and caused a serious relapse, destroying or delaying his chance for recovery, *38 and rendered Mm totally and permanently disabled physically. lie sought damages in substantial amount, and won a verdict and judgment, from which defendant appeals. As we view the case, we must reverse for the erroneous instructions given, and since retrial must follow, we do not further discuss the facts nor the weight or sufficiency of the evidence on the many points involved. Plaintiff’s claimed' cause of action was based on the alleged facts that defendants violated his sick room, and by oppressive demands forced wrongful entrance therein, and then willfully, maliciously, and oppressively so conducted themselves as to cause the serious consequences stated. The substantive instruction advising the jury of the essential proof or findings to justify a verdict for plaintiff reads as follows : “You are instructed that if you find and believe from a preponderance of the evidence that the defendant knew that the plaintiff was sick and was suffering from a nervous breakdown and was improving and convalescing from said nervous breakdown and the said defendant Buerkle knew and the defendant, Pacific Mutual Life Insurance Company knew, through its agents acting within the scope of their employment by the defendant, Pacific Mutual Life Insurance Company, of the plaintiff’s condition and were advised by his physician not to discuss any business with him and in spite of said fact, if you find the same to be a fact, said 'S. M. Murrell and defendant Carl Buerkle did enter said room of the plaintiff and demanded of him the policy of insurance and insisted upon cancellation thereof and served him with a notice of cancellation and tendered to him money as return of premiums, and talked in a loud, boisterous and obstreperous manner and paced up and down the sick room, and attempted to intimidate and threaten the plaintiff, and that the said acts on the part of said S. M. Murrell and Carl Buerkle were the proximate cause of plaintiff William Francis Brewer suffering a relapse and were the proximate cause of William Francis Brewer’s recovery being delayed or retarded or his chances of recovery lessened, then in that event the' plaintiff is entitled to recover damages.” While the court in the opening instruction, in defining the issues, quoted from the pleadings and advised the jury that plaintiff’s claim was based upon the allegation of damages resulting from willful and malicious conduct, this instruction directed a verdict for plaintiff, merely on a showing of certain acts, not necessarily unlawful in themselves, not calculated under normal circumstances to produce any dire consequences, and without mention of any malice, or such knowledge as would make of such conduct any serious and willful imposition upon plaintiff; nor does such instruction make any mention of the gross negligence or willful disregard of the condition of plaintiff as might, upon proper fact showing, make defendant liable for all consequences of the acts. So, under this instruction, the jury might have assessed large damages against defendant on account of acts, not necessarily unlawful in themselves, done without any malice or improper intent or motive, without apprehending that such acts might cause dire results on account of the extraordinary condition of plaintiff, and without any such wanton disregard of plaintiff’s apparent condition or such gross negligence as might make defendant liable for whatever injury resulted. This may account for the quite substantial verdict rendered for plaintiff. While all persons are held responsible for the natural or normal consequences of their acts, this instruction omits' those essential elements which would make this defendant liable for the most extraordinary result of total and permanent physical disability of plaintiff,' if the same exists, and if it did result merely from the acts stated in this instruction, and without any wrongful intent or wrongful motive, or wantonness or willfulness or gross negligence. No other instruction in any manner directs that the verdict may go for plaintiff only if the jury finds the existence of the malice, or motive, or wantonness, or wrongdoing alleged by plaintiff, or such gross negligence or willful disregard for consequences as might, with proper fact showing, render defendant liable. We must conclude that this instruction is erroneous, and is not cured by any other instruction. We cannot say from the whole record that the issues were tried and determined in fairness and justice. We cannot say that no injustice was done defendant, and we therefore find no basis whatever for application of the harmless error doctrine. However grave may be the condition of plaintiff, we cannot escape the conclusion that the trial court was led into reversible error in this instruction, so permitting the jury to improperly fix on defendant this severe liability. We are impressed with the thought that such verdict would not have been returned, but for the erroneous requirement of this instruction. We must reverse the judgment and remand *39 the cause for a new trial, and it is so ordered. CORN, GIBSON, and DANNER, JX, concur. OSBORN, C. X, and DAVISON, X, concur in syllabus and conclusion. BAY-LESS, V. C. X, and RILEY and HURST, JJ., dissent.