299 P. 831 | Cal. Ct. App. | 1931
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *310
The beneficiary, named in a policy of accident insurance, received a verdict holding the insurer liable in the amount of the policy for her husband's death. From the judgment entered thereon, the latter appeals, urging as reasons for reversal: that a juror's prejudice denied it a fair and impartial trial; that the evidence establishes that the cause of death was a risk not covered by the policy, and excepted therefrom; and that the jury was erroneously instructed. *311
[1] Before considering these matters, attention will be directed to respondent's motion to dismiss this appeal upon the ground that the notice to the clerk required by section 953a of the Code of Civil Procedure was filed thirty-six days after actual notice of entry of judgment. The clerk's transcript shows that, without receipt of written notice of such entry, but nine days after such entry, appellant served and filed its notice of intention to move for a new trial, that twenty-seven days thereafter such notice of intention was quashed and dismissed because of its failure to state "whether the same will be made upon affidavits or the minutes of the court or both" (Code Civ. Proc., sec. 659) and that, three days after such dismissal, appellant filed the notice required by section 953a From these facts, respondent argues that the notice of intention was a nullity, without power to extend the time of filing notice to the clerk, that appellant had actual notice of entry at time of filing such notice of intention and that, therefore, the ten days allowed by section 953a, for filing notice with the clerk, commenced to run from date of such actual notice. This argument overlooks the fact that the notice of entry, which, under section 953a, starts the ten-day period running, is, by section 953d, of the same code required to be in writing, unless waived in writing or by oral stipulation made in open court and entered in the minutes. No written notice having been given or waived, the ten-day period for filing notice with the clerk, had not commenced when it was filed and so its filing was in time. (Attkisson v. Reynolds,
[2] To substantiate its claim of a juror's prejudice, appellant relies upon the affidavits of the jury's foreman and its attorney, filed in support of its motion for a new trial. Since the only order relative to that motion was its dismissal, the trial court did not pass upon the question of prejudice and therefore there is no order, relative thereto, to be here reviewed. (Code Civ. Proc., sec. 956.) [3] Assuming that the question is properly presented, the statutory prohibition against a juror's impeachment of the verdict, prevents consideration of either the foreman's affidavit (Metcalf v. *312 Romano,
[5] Appellant denies liability because of the insured's alleged misrepresentation of his occupation as police patrolman in his application, which, by the terms of the policy, was incorporated therein. The evidence as to the title of his occupation, at the date of the application, is conflicting. The general manager of the civil service department, a police clerk and the chief deputy comptroller, all of the city of Los Angeles, each testified that, at that time, the insured received the pay of a motorcycle officer. A former captain of detectives testified that the insured then worked as a detective. Respondent, his surviving wife, testified that his occupation then was a patrolman. There is no evidence as to whether these different titles designated different positions and, if so, whether such positions differed as to duties. The burden of proof as to these matters rested upon appellant. (Ogilvie v. Aetna Life Ins.Co.,
The policy insured against "the effects resulting exclusively . . . from bodily injury sustained by the Insured . . . (1) solely through . . . accidental means . . . (2) or in consequence ofbeing struck". It excepted (1) "the result of the intentionalact of the Insured . . .; (2) any loss contributed to or caused by . . . exposure to unnecessary *313 danger; (3) while violating the law; . . .". Immaterial matter has been eliminated and numerals and italics inserted to clearly focus attention upon the several legal points raised by appellant. The facts of the accident, resulting in the insured's death the same day, as told by eye-witnesses (one, the operator of an automobile, which the insured struck; and the other two, operators of automobiles driven upon the same street as insured, but in opposite directions to each other) are simple and, in the main, unconflicting. The insured was operating a motorcycle easterly in the center of the street, one hundred feet wide, at a speed estimated by one of the latter witnesses at between thirty and thirty-five miles per hour and, by the other at fifty miles per hour, with his head close to the handle-bars, when he was confronted about two hundred feet ahead by an automobile headed south suddenly stopped in the intersection with its front about the center line of the street. The insured sounded no warning, applied his brakes when eighty to one hundred feet distant from the automobile, and swerved first to the front and then toward the rear of such automobile. When ten or fifteen feet away from the automobile, the motorcycle skidded from under the insured, throwing him to the pavement, along which he slid till his head hit the right rear wheel of the automobile.
Arguing that the speed, application of brakes and the swerving of the motorcycle were each voluntary and intentional acts of the insured and that the presence of the automobile was to be expected, appellant claims that the death did not result from injuries sustained by "accidental means", but because of the insured's "intentional acts". [6] The burden of proving that death resulted from the two specified causes, i.e., the risk covered, rested upon respondent. (Price v. Occidental LifeIns. Co.,
In holding that a death caused solely by the insured's slipping and falling while cranking an automobile resulted from accidental means, the court in Preferred Accident Ins. Co. v. Patterson,
213 Fed. 595, 597, used the following pertinent language: "We agree that, when a man is injured while doing merely what he intends to do, he is not injured by an accident, unless the course of his action has been interrupted or deflected by some unforeseen or unintended happening. To illustrate from the facts before us: Since the deceased was attempting to start the engine of his car by turning the crank, whatever injury he might sustain from the ordinary strain of that operation would properly be regarded as a result of what he intended to do, and therefore would not be accounted accidental. But we can hardly suppose that he intended to slip and fall in the course of the operation, and therefore if he did slip and fall, and sustained injury as the direct result thereof, the happening would be unforeseen and unintended, and the injury would be accidental." In considering facts, very similar to those in the instant case, the court inRowe v. United Commercial Travelers, 186 Iowa, 454 [4 A.L.R. 1235, 1240, 172 N.W. 454], said: "But passing, for the present, the question of an alleged violation of the law and voluntary exposure to danger, it is yet true that driving the car at high or unsafe rate of speed, or in a manner to justly convict the insured of negligence, does not necessarily deprive the disaster which he suffered of its character as an accident, nor does it conclusively negative a finding that his injury and death were occasioned by accidental means. Bohaker v. Travelers' Ins.Co.,
[8] Appellant next claims that since the evidence without contradiction shows that the insured's head hit the right rear wheel of the stationary automobile, it conclusively establishes that the death was not "in consequence of being struck" by an automobile. The wording of the policy does not warrant appellant's transposition of the word "automobile" from the next succeeding clause descriptive of another contingency, to this anterior clause. The policy merely requires that the insured be struck without specifying what shall strike. Its argument is based upon the assumption that the verb "strike" requires that both its subject and its object be in motion and that therefore the insured could not have been struck by a stationary automobile. The same argument is the basis of its criticism of the court's addition of the italicized phrase to its following requested instruction: "You are instructed that the verb `struck' comes from the verb `strike' which means to give a blow to; to smite; to dash; to stamp with a stroke or blow; to come incollision with." The added phrase is one of the definitions of the verb "strike" given by Webster's Standard Dictionary. "Collision means a striking together; violent contact; the act of colliding, Standard Dictionary. In simple terms it is a striking together of two objects. Both may or may not be moving. One may be stationary." (Polstein v. Pacific Fire Ins. Co., 122 Misc Rep. 194 [203 N.Y. Supp. 362].) The word "collision" has been more commonly used, first in marine insurance and more recently in automobile accident insurance, to cover the same contingency as is described in the present policy by the phrase "being struck". The great weight of authority in cases involving the latter policies is to the effect that there can be a collision between a moving and a stationary object. (Universal ServiceCo. v. American Ins. Co.,
[9] In considering appellant's claim that the evidence establishes, as a matter of law, that insured's death was "contributed to or caused by voluntary exposure to unnecessary danger" and occurred "while violating the law", it must be remembered that these perils were excepted risks as to which appellant had the burden of proof. (Mattson v. MarylandCasualty Co.,
Violation of any provision of California Vehicle Act (Stats. 1923, p. 517 as amended by Stats, 1925, p. 398, in effect at the time of the accident) "`is presumptively an act of negligence and conclusively so until rebutted by evidence that it was justifiable or excusable under the circumstances'". (Berkovitz
v. American River Gravel Co.,
Since section 153 of the act makes any violation of its provisions a misdemeanor, any such violation by deceased which proximately contributed to his death would be within the exception, but whether he did so violate the statute or whether such violation was a proximate cause of his death were questions of fact for the jury. (Rowe v. United Commercial Travelers,supra; 1 C.J. 511.) [10] The court properly refused appellant's requested instruction to the effect that, if the insured was riding at a speed of fifty to sixty miles, he was violating the law and defendant was not liable, because it ignored the essential element of proximate cause. "The proposed instruction was properly refused for the reason that it is indefinite as to place or location at which it might be inferred that the" motorcycle "was being operated". (Dawson v. SanDiego Elec. Ry. Co.,
Finding no error in the record, the judgment is affirmed.
Tyler, P.J., and Cashin, J., concurred.