Flyzik v. Travelers Insurance

Beals, J. — July 25, 1941, The Travelers Insurance Company, a corporation, issued to Martin J. Flyzik a policy of accident insurance, whereby, inter alia, it agreed to pay to plaintiff, Cora Flyzik, the wife of the insured, $2,500 in the event of Mr. Flyzik’s death as the result of an accident. Mr. Flyzik was fifty-six years of age, and weighed approximately one hundred eighty pounds. He was a safety engineer, employed as manager of the Everett Safety Council. December 25, 1941, Mr. Flyzik was apparently in good health, spent the day at home, and during a portion of the time occupied' himself with some household tasks, including cleaning the basement. Between nine and ten o’clock in the evening, he was observed by his wife and daughter, and was in good health and spirits. Between seven and eight o’clock the next morning, his body was discovered in his yard, near the back of the garage, about fifty or sixty feet from the house. He was lying on the ground, *36 his right hand outstretched. His body was resting near an ash or rubbish can, sixteen inches in height and fourteen inches in diameter at the top, which was kept in the basement. His head was very near the opening of the can, which was lying on its side, and his left hand was slightly under the rim, but no other portion of his body was in contact therewith. There was a noticeable abrasion on the right side of his forehead. The weather was very cold, and there was considerable ice and frost on the ground. During the following month, Mrs. Flyzik notified the insurance company that the insured had died as the result of an accident, arid, the company having denied liability, this action was instituted to recover on the policy. By its answer, the defendant admitted the issuance of the policy, and that the same was in good standing at the time of the death of the insured, but denied all the other allegations of the complaint. The action was tried to a jury, and resulted in a verdict in plaintiff’s favor. After defendant’s motions for judgment in its favor notwithstanding the verdict, or in the alternative for a new trial, were denied, judgment was entered upon the verdict, from which the defendant has appealed. The policy insured against death resulting directly and independently of all other causes from bodily injury effected through accidental means. Appellant contended upon the trial that the evidence failed to show that Mr. Flyzik died as the result of an accident within the provisions of the policy. Appellant assigns error upon the overruling of its challenge to the legal sufficiency of the evidence and its motion for dismissal interposed at the close of respondent’s case. Error is also assigned upon the denial of its request for an instructed verdict in its favor; upon the denial of its motion for judgment in its favor notwithstanding the verdict; upon the denial of its motion for a new trial; and upon the entry of judgment in respondent’s favor. Shortly after the discovery of Mr. Flyzik’s body, two competent physicians were requested by respondent to *37 perform an autopsy. The doctors performed a partial autopsy, signing a written report embodying their findings. In this report, among other statements, is found the following: “No findings sufficient to account for death.” Appellant introduced no evidence on the trial, submitting the case after the trial court had overruled its challenge to the sufficiency of the evidence. The doctors who performed the autopsy, Drs. A. H. Gun-derson and John F. Beatty, were called as witnesses for respondent, testifying, as stated in their report, that the autopsy disclosed no condition of such a nature as to account for the death of the insured. One of the doctors further testified that when he was requested to perform the autopsy he was informed that the autopsy was desired for the purpose of determining whether or not Mr. Flyzik had died of heart disease, apoplexy, stroke, or hemorrhage of the brain. Both doctors testified that they found a slight bruise or abrasion on the forehead of the deceased, one of the doctors testifying that in his opinion this might have been caused by the fall, the other testifying that it was his opinion that the abrasion had been caused after Mr. Flyzik’s death. One of these doctors testified that they observed no injury to the neck, but apparently they did not, in the course of the autopsy, extend the operation to that portion of the body. Dr. William D. Smith, answering a hypothetical question propounded by respondent’s attorney, testified that Mr. Flyzik had died as the result of a “broken neck or a terrific shock — spinal cord at the base of the brain, or a dislocation causing pressure on the cord sufficient to cause his death.” In the course of the examination of this witness, the following occurred: “Q. Now, Doctor, where a man weighted 180 lbs., what would be the effect of hitting a can with the head, in the course of falling that way? A. It would snap his head back. Q. And would the fact that he weighed 180 lbs. have any effect upon the amount of snap? ... A. I think so. Q. Now, Doctor, the fact that his hand was out this way (indicates), does that have any significance? The right *38 hand was out this way (indicates), fingers extended. A. It would indicate to me he was trying to protect himself from the fall.” Dr. Arthur A. Thomle testified, in answer to a hypothetical question: “A. I assume he fell, struck his head on the edge of the can; that he threw his head back and either snapped it, broke the neck or dislocated, whereby there was that much pressure on the cord, and he died. Q. What would be the effect of a 180-lb man falling forward, and, in the process of falling, striking his head on the edge of the can. What would be the mechanism of that? [Appellant’s objection overruled] A. He would simply snap his head back quickly as he fell forward with his weight. Q. That is, the body would be down and the head up? A. Yes. It would just throw the head back like that (indicates), quickly. Q. Now, Doctor, what would be the physical situation, in your opinion, with a hand outstretched that way, the right hand? A. He would throw it out to catch — before he struck, in all probability, as a protector.” The two witnesses referred to testified at some length concerning their theories as to the cause of Mr. Flyzik’s death. Evidence to the effect that prior to his death Mr. Flyzik was in good health and led an active life was nowise controverted. Dr. Smith had several times taken Mr. Flyzik’s blood pressure and found it normal. The tin can above referred to was about a quarter full of ashes, also containing two empty tin cans. The testimony of Drs. Smith and Thomle was to the effect that in their opinion Mr. Flyzik was carrying the can out for the purpose of emptying it; that he slipped on the icy ground and fell, and in his fall struck his head against the can and snapped his neck back, with fatal result. Appellant argues that the record contains no evidence that the deceased struck the ash can in falling, or that the fall broke his neck; that the testimony of Drs. Smith and Thomle was based upon assumptions which were not supported by the evidence, and were a matter of conjecture and speculation. In this connection, appellant cites the *39 recent case of Cox v. Polson Logging Co., 18 Wn. (2d) 49, 138 P. (2d) 169, in which we said: “This court has repudiated the so-called ‘scintilla of evidence’ rule and has repeatedly held that evidence sufficient to support a verdict must be substantial.” Appellant also relies upon the case of Hill v. Great Northern Life Ins. Co., 186 Wash. 167, 57 P. (2d) 405, in which we said: “In an action upon an accident insurance policy, the burden which the injured plaintiff assumes is to show that injury or death was due to accidental or othér means specified in the policy.” This case presents a peculiar and unusual situation. Admittedly, Mr. Flyzik was a strong, healthy man. The autopsy shows that there was no injury to the brain, no heart or lung condition which could cause death, and that the stomach, spleen, liver, and intestines were free from any pathology. Dr. Beatty testified that in his opinion the bruise on Mr. Flyzik’s forehead was made before death, giving the reason for his opinion. Dr. Gunderson testified that he believed the forehead became bruised after death, stating the reason for his opinion. It is admitted that the ground was at least fairly well covered with ice and frost. There can be no dispute but that sometime after nine o’clock on the night of December 25th, Mr. Flyzik carried the can from the basement of his home to a point behind his garage fifty or so feet from the house; that, at the spot where his body was found, something occurred which caused his death. By the evidence, many matters which might have caused his sudden death, such as a heart or brain condition, are eliminated. We agree with the trial court that respondent’s theory, as developed by the testimony, was a reasonable hypothesis, and that the jury was entitled to pass upon the evidence, and that the trial court did not err in overruling appellant’s challenge to the sufficiency of the evidence and denying appellant’s later motion for judgment in its favor notwithstanding the verdict. Lee v. Gleason Co., 146 Wash. 66, 262 Pac. *40 133; Allen v. Washington Nat. Ins. Co., 9 Wn. (2d) 563, 115 P. (2d) 685; Griffin v. Cascade Theatres Corp., 10 Wn. (2d) 574, 117 P. (2d) 651. Appellant also assigns error upon the denial of its motion for a new trial. In this connection, appellant contends, first, that the evidence was insufficient to justify the verdict, and, second, that the court erred in giving an instruction to which appellant excepted. What has already been said disposes of the first contention concerning the evidence. By the instruction complained of, the court told the jury in effect that, if they believed that respondent’s theory concerning Mr. Flyzik’s death, which theory the court detailed in the instruction, was correct, they should find for the plaintiff. By the same instruction, the court told the jury that, if after considering and weighing all the evidence, “ . . . you have as much reason or more reason to believe that the death of Martin Flyzik resulted from natural causes, then and in that event your verdict must be for the defendant and that the plaintiff, Cora Flyzik, take nothing.” Appellant argues that there was no competent evidence to the effect that Mr. Flyzik’s striking the edge of the can had anything to do with his death, nor was there any evidence showing that Mr. Flyzik’s fall and striking the can broke his neck and caused his death. The evidence justified the giving of the instruction complained of, and the submission of the question to the jury. Finding no error in the record, the judgment appealed from is affirmed. Millard, Steinert, Blake, Jeffers, Mallery, and Grady, JJ., concur.