The plaintiff-appellant, Evelyn V. Miesen, sued as the beneficiary of certain insurance policies on the life of her husband. Thesе policies were payable in the event of accidental death.
On March 11, 1965, Vincent Miesen, husband of the plaintiff, had stopped his car for an open drawbridge when he was struck from the rear by another vehicle. He died on *186 April 13, 1965. All medical witnesses agreed that the cause of his death was myocardial infarction. Mr. Miesen had an arteriosclerotic buildup in the coronary arteries which was present, but not discovered, prior to the accident. The issue is the cause in fact of the myocardial infarction. Thе insurance policies are payable only if death resulted from bodily injury caused by an accident, directly and independently оf all other causes.
From a judgment for defendants, the plaintiff has appealed, assigning error upon four separate grounds.
Error is first assigned to the court’s failure to instruct the jury as to plaintiff’s theory of the case.
Plaintiff alleges that the sole cause of Vincеnt Miesen’s death was the automobile accident of March 11, 1965. Her theory treats the disease of arteriosclerosis as a сondition to and not a cause of the death. There is authority to support this theory.
Pierce v. Pacific Mut. Life Ins. Co.,
The trial court refused to give plaintiff’s requestеd instructions as follows:
If you find from the evidence that the death of Vincent F. Miesen resulted directly and independently of all other cаuses from bodily injuries sustained solely through external, violent and accidental means, then you will find for the plaintiff. This notwithstanding it may appeаr from the evidence in the case that upon subsequent investigation an arteriosclerotic condition may have existed priоr to and at the time the accidental injury hapened; provided further that you find that Vincent F. Miesen would not have had the active, mоving disorder that produced his death at the time and in the manner he did have it, if he had not been injured in the automobile accident.
Instruction No. 11.
You are instructed that the fact that a physical infirmity of Vincent Miesen may have been a necessary condition to his death, if you so find, would not prevent you from finding that the automobile accident in this case was the sole producing cause of death.
*187 Instruction No. 2.
Each party to a lawsuit is entitled, when the evidence warrants it, to have his theory of the case submitted to the jury under appropriate and submittеd instructions,
Elmer v. Vanderford,
The proposed instructions were properly refused by the trial court. They constituted a comment on the evidencе by the trial court in violation of article 4, section 16, of the state constitution. This constitutional provision prohibits the trial judge from any аction or words which would convey to the jury his personal opinion as to the truth or falsity of any evidence.
State v. Brown,
The second sentence of requested instruction No. 11 indicated that there was a question whether the deceased had arteriosclerosis at the timе of the accident. There was no factual dispute; Miesen had arteriosclerosis at the time of the accident.
Requested instruction No. 2 would have had the effect of defining the disease as a “condition.” Because the ultimate issue was whether the arteriosclerosis was a cause or a condition, the trial judge could not give the instruction as requested.
It was not error for the trial judge to prepare his own instruction when the parties failed to submit proper instructions. See
Zolawenski v. Aberdeen,
*188
The plaintiff contends that it was error to allow Dr. Frank Busteed to testify, from his notes regarding the autopsy which hе performed. He had no independent recollection of the autopsy. The trial court ruled that the autopsy report was past recollection recorded. We agree. The prerequisites for admission of past recollection recоrded are set forth in
State v. Benson,
(1) The witness has no independent recollection of the facts, (2) the writing itself does not bring back any distinct recollеction of the circumstances, (3) the writing was prepared concurrently (or almost) with the facts . . . (4) that the witness knew that the memorandum wаs true when written, and (5) that the memorandum or writing was an accurate and complete record of what transpired.
These prerequisites were met. There was no error.
The plaintiff complains that the court instructed the jury that payment to her of $7,500 had been made by Republic National Life Insurance Company. She suеd on a policy which contained a provision for payment of the sum of $7,500 upon death and the additional sum of $7,500 in the event of аccidental death, and the entire policy was introduced into evidence. Upon those facts, it was not error to instruct the jury thаt the $7,500 death benefit had been paid.
The plaintiff assigns error to the introduction of the record of Providence Hospital, Seаttle (exhibit 2A) which included the autopsy report. The autopsy report recited the procedures followed, observations made, the condition of the organs examined and the examiner’s conclusions regarding the severity of the condition. The basic objection to the exhibit was that the conclusions regarding the severity of the condition were based upon speculation and cоnjecture. We need not answer this question since the record supports the trial court’s conclusion that the parties stipulatеd to the admission of the exhibit at the time of the pretrial conference. We find no error in this procedure.
The ultimate question was whether the accident, acting *189 independently, caused the death, with the arteriosclerosis being merely a necessary condition or whether the two combined to cause the dеath. The burden of resolving this issue required instructions which put the question to the jury in the simplest and most straightforward manner possible. This was done, without prejudicing either theory of the case, with the instructions given. We cannot reverse, even if we believe that instructions more favorаble to the plaintiff may have been given, unless we find an error in the instructions given or error in the refusal to give plaintiff’s proposed instructions.
We find no error. The trial court is affirmed.
James, C. J., and Swanson, J., concur.
Petition for rehearing denied January 14, 1970.