284 P. 599 | Kan. | 1930
Lead Opinion
The opinion of the court was delivered by
This is an action on what is commonly known as an accident insurance policy. The jury answered special questions and returned a verdict for plaintiff. Defendant has appealed, and complains that the court erred in giving certain instructions, in excluding evidence offered, and in refusing to grant a new trial.
“This policy does not cover death, disability, or other losses . . . received . . . while under the influence of any liquor or any narcotic.”
The defense was that the insured was under the influence of intoxicating liquor at the time he received the injury by accident which resulted in his death.
Raymond R. Richardson and his wife lived near Stafford, Kan. On Sunday afternoon, December 4, 1927, they, with seven friends from their neighborhood, drove from Stafford to Hutchinson, Kan., in two automobiles, one of which was driven by Richardson and the other, a Buick coupé with a rumble seat, was driven by Victor McMillan. They reached Hutchinson sometime after dark. The lights on the Richardson car were giving trouble and it was taken to a garage, where it was left for the evening. All nine of the members of the party got in or on the McMillan car and drove about the streets of Hutchinson. Seven of the persons were in the seats of the car. Richardson was riding on the running board and rear fender on the left side of the car and one other person in a similar position on the right side of the car. The party left the garage about 9 or 9:30 o’clock. Shortly before 11 o’clock the accident occurred which caused Richardson’s death. In Hutchinson, Fourth street is an east-and-west street on which there is a street-car line. The automobile on which Richardson was riding was going west on Fourth street, with the left wheels south and the right wheels north of the north rail of the street-car track. A street car was approaching from the west. The driver of the automobile turned to the right to get off the street-car track, but did not do so soon enough. The automobile struck the northeast corner of the street car, Richardson was knocked off, and sustained severe injuries, from which he died. Persons in the street car and others carried Richardson to the parking, an ambulance was called, and he was taken to the hospital, where his injuries were cared for. He was given an anesthetic and operated upon about 1 o’clock and died about 6 o’clock in the morning. The car on which Richardson was riding at the time of his injuries stopped a half block or more west of the place of the collision. There is evidence that two of the men of the party went
In answering special questions the jury found that there was an ■odor of alcohol on the breath of the insured immediately after the accident and while he was at the hospital and in his vomit there. The jury also found that at the time of the injury which caused his death the insured was not under the influence of liquor.
Respecting the specific issues submitted to the jury the court
“5. ... so the only question the jury is called upon to decide is whether or not the said Raymond R. Richardson was under the influence of intoxicating liquor at the time of said injuries; and the burden of proof in this respect is upon the defendant.
“6. Now if the defendant has proven to you by a preponderance of the evidence in this case that the said Raymond R. Richardson was under the influence of intoxicating liquor at the time he was injured, then the plaintiff would not be entitled to recover in this action. On the contrary, if the defendant has failed to establish by a preponderance of the evidence that the said Raymond R. Richardson was under the influence of intoxicating liquor at the time he sustained said injuries, then the plaintiff would be entitled to recover in this action the sum of fifty-five hundred dollars with interest thereon at the rate of 6 per cent per annum from April 5, 1928.
“7. The policy of insurance in this case provides, in substance, that no recovery can be had thereunder for injury sustained while the insured is under the influence of any liquor. Now, in this connection, I instruct you that before the defendant insurance company can avoid the policy on that ground, it must appear that the insured was under the influence of liquor at the time he was injured to a degree that substantially impaired his judgment in the exercise of the faculties essential to his safety, and made him irresponsible ior his acts.
“8. I further instruct you that in order to establish the defense that the said Raymond R. Richardson was under the influence of intoxicating liquor, it is necessary for the defendant to show more than that he had taken a drink or drinks of intoxicating liquor, but the defendant must go further and show that he was under the influence of intoxicating liquor; that it had taken possession of him; and that it was such a possession as affected substantially his actions and doings at the time of the injury, and that it must have affected Mm to such an extent that the jury can say he was not responsible jor his acts.
“It is not necessary, however, that defendant company should show that the accident resulting in the death of Richardson was the result of, or had any connection with, such condition of being under the influence of intoxicating liquor; it is sufficient that the defendant shall show that the said Raymond R. Richardson, at the time of the injury which resulted in his death, was under such influence. This the defendant must show by a preponderance of the evidence; and if it does so show, your verdict will be for the defendant.
“9. You are instructed that if you believe from the evidence that Raymond R. Richardson sustained an injury while under the influence of any intoxicating liquor, on December 4, 1927, said injury resulting in the death of said Richardson, then your verdict should be for the defendant.”
No complaint is made of instructions 5, 6 and 9, nor of any portion of instructions 7 and 8 except the words which we have had printed in italics. Appellant contends that these words placed too
“If insured becomes intoxicated to such an extent as to impair his ability to care for himself, and thus increase the probability of his suffering accidental injury, it constitutes intoxication within the meaning of an accident policy clause limiting insurer’s liability in case insured is injured while ‘insane, delirious, or under the influence of any intoxicant or narcotic.’ ”
This rule appears to be a correct deduction from Bakalars v. Continental Casualty Co., 141 Wis. 43; Robinson v. Hawkeye Com. Men’s Assn., 186 la. 759. Other cases treating varied wording of policy clauses on the subject are collected in the notes of 15 L. R. A., n. s., 206; 25 L. R. A., n. s., 1241; and 37 A. L. R. 356. See, also, 1 C. J. 457 and cases there cited, and 14 R. C. L. 1225.
These authorities support the view, in actions on accident insurance policies containing a provision like, or similar to, the one in the policy which forms the basis of this action, that degrees of being “under the influence of liquor” are recognized, and that the language just quoted should be given the same meaning as though the word “intoxicated” or “drunk” had been used, giving to those words the common meaning ordinarily attributed to them, and that the provision of the policy is available as a defense only when it is-shown that the insured was at the time of the accident intoxicated, or drunk to the extent or degree that it impaired his ability .to care-for himself, thus increasing the probability of his suffering accidental injury. Appellant concedes the correctness of the rule just-stated, and hence makes no complaint of the instructions to the extent they embody it, but contends that when to that the court, added “and made him irresponsible for his acts,” in instruction 7, and a similar phrase in instruction 8, it went much beyond the rule-of law just stated.
In this state one ordinarily is not relieved of- responsibility for his acts because of his intoxication from liquor voluntarily taken. (State v. Guthridge, 88 Kan. 846, 129 Pac. 1143.) There was, of course, no evidence that liquor had been administered to the insured, against his will. Aside from that somewhat extreme view, which might have been taken from the language used, it is quite clear that the language complained of, and in fact the instructions as a. whole, placed a greater burden upon defendant than that laid down-in the rule of law in the authorities above cited. These instructions appear to have been taken from the opinion in Mabee v. Continental.
Appellee raises the point that appellant is not in position to complain of the wording of the instructions given for the reason that the record does not disclose that any exceptions were taken, or objections made to the instructions, or any motion made for their modification, citing R. S. 60-2909 and Foley v. Crawford, 125 Kan. 252, 262, 264 Pac. 59. The pertinent syllabus in the Eoley case reads:
“Complaint that instructions given should have included additional matter is unavailing in the supreme court where the instructions given did not incorrectly state the law, and where no objection was made to any of them, no modification of any of them was suggested, or no special instruction was requested.” (Syl. ¶ 10.)
See Rambo v. Electric Co., 90 Kan. 390, 393, 133 Pac. 533; Murphy v. Gas & Oil Co., 96 Kan. 321, 327, 150 Pac. 581; Williams v. Flour Mills Co., 103 Kan. 842, 844, 176 Pac. 639; Master Sales Company v. Sytsma, 114 Kan. 120, 122, 217 Pac. 291; Coal & Mining Co. v. Fuel Co., 114 Kan. 546, 220 Pac. 178, which are to the same effect.
It will be seen that the rule relied upon by the appellee does not apply to an instruction -which is in itself erroneous.
Appellee does not contend that the question now raised by appellant on the instructions was not presented to the court on the hearing of the motion for a new trial.
One other point should be noticed. At the trial the court admitted evidence with respect to the condition of the car on which the insured had been riding and the finding of bottles with the odor of alcohol therein, and also some evidence to the effect that other members of the party than the insured had been drinking, but excluded evidence offered to show that when members of the party went to the hotel shortly before one o’clock two members of the party were so drunk they could not make change to pay for the room, and also excluded evidence as to the degree or extent of in
Because of the errors in the instructions given, the judgment of the court below must be reversed and a new trial granted. It is so ordered.
Dissenting Opinion
(dissenting in part): I must differ from my associates on the rule of practice stated in syllabus 2 and treated in the opinion. My view is this: There is but one time in the trial of a case to a jury when it is important that the instructions be correct, and that is when they are read to the jury. Assuming, as we must, that both the court and counsel for the litigants desire controverted issues submitted to the jury to be determined in accordance with correct principles of law applicable to them, they should, in their respective positions, endeavor to have the instructions so framed that this can be done. The pertinent statute (R. S. 60-2909) provides, in substance, that the court shall give general instructions to the jury on the issues to be determined by them; that if counsel desire special instructions to be given they should be requested, and that before reading the instructions to the jury the court shall, when requested, “submit the same to counsel on either side and give counsel a reasonable time to suggest modifications thereof.” I think the statute is designed to carry out the view above expressed. I am well aware that the provisions of our old code for the taking and preserving of exceptions by bills of exceptions were omitted from our revised code, and that it is no longer necessary to preserve such exceptions with respect to instructions, or any other adverse ruling of the court. (Cobe v. Coughlin, 83 Kan. 522, 111 Pac. 458.) It is enough to show that a particular matter has been
A party is not permitted to bury an error in generalities. (Brown v. Oil Co., 114 Kan. 482, 218 Pac. 998; Collis v. Kraft, 118 Kan. 531, 235 Pac. 862; State v. Bell, 121 Kan. 866, 870, 250 Pac. 281; Koury v. Rapalino, 124 Kan. 582, 261 Pac. 578.) Other cases might be cited.
Diligent counsel will have investigated the law pertaining to controverted issues raised by pleadings that are to be presented to the jury. There is no reason why they should not aid the court in preparing the instructions so they state the law correctly. It should
