Losleben v. California State Life Insurance

On a former appeal in this case ( 119 Cal. App. 556 [ 6 Pac. (2d) 1012 ]), this court in reversing a judgment of nonsuit summarized the facts as follows:

“The plaintiff is the widow of George Phillip Losleben, who held an insurance policy issued by the defendant. This policy provided for the payment of $2,500 in the event of death resulting from natural causes and for an additional $2,500 ‘in the event that the death of the insured is caused by bodily injuries effected exclusively and wholly by external, violent and accidental means, said death occurring within ninety days after the happening of such accident’. The insured was employed as a mechanic in a packing-house

and on November 21, 1929, was directed by Ms employer to build a shelf over a workbench, which bench was about three feet high. The employer left the building about three o’clock on the afternoon of that day, leaving the insured engaged in this work. When the employer returned about two hours later he found the insured in great pain and sent Mm home. Doctors were immediately called, an operation was performed and on November 25,. 1929, the insured died. The defendant paid the $2,500 contemplated by the policy for death from a natural cause, but refused to pay the additional $2,500.”

“The deceased had been working in this packing-house for about ten years. His employer testified that when he left Mm on the afternoon in question he appeared to be in perfectly good health and was whistling at his work; that in doing Ms work it was necessary for Mm to climb upon this bench, and in getting down to jump from the same; that when he returned he found the deceased suffering extreme pain and ‘doubled up’; that he sent him home and shortly thereafter went over to see him; that at that time the insured could not stand up straight; and that when he was put to bed he ‘drew himself up’. The physician who was immediately called testified that he examined the insured and found Ms abdomen very much distended and very painful to the touch; that from his examination of the patient he could determine how the injury was caused within a certain range of possibilities; and that on the same day, November 21st, he performed an operation. As to what he found, he testified as follows: ‘I found a condition of peritonitis of the abdominal cavity; fluid in the abdomen, and fecal matter; I found a perforation of the small intestine in the center, or twist of the bowel, what we call a volvulus —that is the technical name for a twist of that character. The circulation had been cut off by this twist and that segment of the bowel was blue and black, colored in the process of decay. ’

‘ ‘ This physician testified that in Ms opinion this condition was caused by an injury. Another physician testified that he saw the insured on November 21st, that the insured told Mm that the pain in Ms abdomen came on acutely that afternoon, compelling him to quit work, and that he almost collapsed; that when he saw the patient he was in such pain

he could not say very much; that he held his stomach and complained of the terrible pain; and that he was lying down and rolling in pain. This physician testified that in his opinion the death of the decedent was caused by acute peritonitis, which was brought on by ‘the volvulus or twist of the bowel', and that this condition of the patient could be caused by ‘a sudden jolt, or a strain of the bowel wall, probably a sudden jerk or jump’. Asked as to what kind of a condition volvulus is, he replied: ‘It is a twist in the bowel, usually occurring in the small bowel, and as soon as that takes place you have your circulation cut off in the bowel adjoining, and that bowel immediately becomes weakened, the blood supply is shut off, and, of course, immediately we have gas accumulate because the bowel is obstructed and the gas accumulates in all the bowel, and the weakened condition in the bowel which had been deprived of the circulation is liable to burst or perforate. ’

“He then testified that this patient had a volvulus and a perforation of the bowel, and that this could be caused either by chronic constipation, by tuberculosis or by a sudden jolt or strain. He then testified that he found no indications that this patient suffered from the ailments referred to, and that his bowel and all of his abdominal organs were in a healthy condition. Based upon the conditions he found, he testified that in his opinion this particular volvulus was caused by a strain.”

A second trial resulted in a judgment for the plaintiff from which the defendant has taken this appeal. In addition to the facts above outlined the record shows that the two doctors who operated upon the insured, and later assisted in an autopsy, after stating what they found, testified as to the several things which could have caused such a condition, each naming trauma, or injury, as one of such causes. Each then testified that he could find no indication of the presence of any of the causes named except trauma, and that in his opinion the volvulus in the decedent was caused by trauma.

The appellant’s first contention is that the evidence is entirely insufficient to support the verdict, in that it fails to show death from accidental means as distingushed from an accidental death. The appellant concedes that the evidence for the respondent is essentially the same as that

It is well established that where an act is done in precisely the manner intended, it cannot be said that an ensuing injury results from accidental means, although the result itself may have been unexpected and be such as to constitute accidental injury. While this distinction is somewhat technical it has some reasonable basis in cases where the result is to be naturally expected or foreseen from the act done, or where, from existing disease or otherwise, the strain of an intended act is too great for a particular individual. Under our decisions, accidental means involves an element of unexpectedness in the act or occurrence which leads to the injury. In Rock v. Travelers’ Ins. Co., supra, the court pointed out this distinction and observed that in most eases where injury by accidental means was held to be established, “there was some evidence which justified the inference that the means through which the injury was sustained contained something of an unexpected or unforeseen character.” In Davilla v. Liberty Life Ins. Co., 114 Cal. App.

“The term ‘accidental means’ has been frequently defined in this state, but it seems not applied to similar facts. ‘The policy, it will be observed, does not insure against accidental death or injuries, but against injuries effected by accidental means. A differentiation is made, therefore, between the result to the insured and the means which is the operative cause in producing this result. It is not enough that death or injury should be unexpected or unforeseen, but there must be some element of unexpectedness in the preceding act or occurrence which leads to the injury or death. ’ (Rock v. Travelers’ Ins. Co., 172 Cal. 462 , 465 [L. R. A. 1916E, 1196, 156 Pac. 1029 ].) ‘"Where the death is the result of some act, but was not designed and not anticipated by the deceased, though it be in consequence of some act voluntarily done by him, it is accidental death. Where death is caused by some act of the deceased not designed by him, or not intentionally done by him, it is death by accidental means. In other words, accidental death is an unintended and undesigned result, arising from acts done; death by accidental means is where the result arises from acts unintentionally done.’ (Pledger v. Business Men’s Acc. Assn, of Texas, (Tex. Civ. App.) 197 S. W. 889 , quoted with approval in Olinsky v. Railway Mail Assn., 182 Cal. 669 , 672 [ 14 A. L. R. 784 , 189 Pac. 835 ], followed in Ogilvie v. Aetna Life Ins. Co., supra, [ 189 Cal. 406 ( 26 A. L. R. 116 , 209 Pac. 26 )].) ‘An effect which is the natural and probable consequence of an act or course of action cannot be said to be produced by accidental means. ’ (Harloe v. California State Life Ins. Co., 206 Cal. 141 , 142 [ 273 Pac. 560 ].) ‘Without doubt, there can be no recovery if the insured does a voluntary act the natural, usual, and to-be-expected result of which is to bring injury upon himself. An injury or death so occurring is not produced by “accidental means” in any sense of the word, legal or colloquial. (Lickleider v. Iowa State Traveling Men’s Assn., 184 Iowa, 423 [ 3 A. L. R. 1295 , 166 N. W. 363 , 168 N. W. 884 ].) ... In Western Com. Travelers’ Assn. v. Smith, 84 Fed. 401 [ 40 L. R. A. 653 , 29 C. C. A. 223 ], a leading case, it is said the term “accidental means” is descriptive of “means which produce

effects which are not their usual and probable consequences”.’ (Horton v. Travelers Ins. Co., 45 Cal. App. 462 , 466 [ 187 Pac. 1070 ].) ‘The term “accidental means” depends for its application upon the facts of each particular case; since what would be an unusual or improbable consequence, an unexpected or unforeseen occurrence in one set of circumstances in which the assured might be placed would be the usual, the expected and in all human probability the foreseen consequence affecting the assured in another set of circumstances. ’ (Moore v. Fidelity & Casualty Co., 203 Cal. 465 , 473 [ 56 A. L. R. 860 , 265 Pac. 207 , 210.) ”

In U. S. Mutual Accident Assn. v. Barry, 131 U. S. 100 [9 Sup. Ct; 755, 33 L. Ed. 60 ], where the injury was preceded by a jump from a platform, the court said: “It is further urged there was no evidence to support the verdict because no accident was shown. We do not concur in this view. The two companions of the deceased jumped from the same platform, at the same time and place, and alighted safely. It must be presumed not only that the deceased intended to alight safely, but thought that he would. The jury were, on all the evidence, at liberty to say that it was an accident that he did not.”

The mere fact that an act of jumping was voluntarily done does not conclusively show that an ensuing injury was not the result of accidental means. Such an act may be, and frequently is, accompanied or followed by other acts not intentionally done, such as slipping, falling, alighting upon an object not seen, an involuntary movement caused by unexpected developments or any one of a number of things that could be named. While an injury to an insured person may result in greater or less degree from an original voluntary act upon his part, if there is some evidence which justifies the inference that the means which produced the injury contained something of an unexpected or unforeseen character involving other acts not intentionally done, the resulting injury may be said to be caused through accidental means. In the instant case, while the deceased may have intended to jump from the bench, he may have slipped, fallen, alighted upon something, involuntarily given his body a violent jerk or twist, or a number of other things may have occurred which were not naturally or necessarily to be expected in connection with the ordinary act of jumping

The only other point raised is that the court erred in giving certain instructions. In the main, this attack is directed to two instructions reading as follows:

“You are instructed that, if you find from the evidence that the insured did a voluntary act, the natural, usual and to-be-expected result of which was not to produce injury to himself, but that there flowed from said act an unforeseen and unexpected means through which the injury was sustained, or the death produced, then you will find that the death was caused.by accidental means.”

“I instruct you that the doing of an intentional act, such as jumping from a bench, by decedent, from which the injury resulted, if you find that he did such intentional act and did jump from such bench, does not bar a recovery if the circumstances surrounding the doing of such act point to the possibility of an involuntary consequence, such as slipping or falling whilst jumping from a bench.”

Among the instructions given at the request of the appellant were the following: One defining the difference between accidental death and death through accidental means, although the same was in fact much too favorable to appellant; one telling the jury that if it believed from a preponderance of the evidence that the death of the insured was the sole result of his act in jumping, their verdict must be for the defendant; one to the effect that before the jury could find for the plaintiff it must find that the injuries were caused through external, violent and accidental means independent of all other causes; one that unless the death of the insured was caused by bodily injuries effected exclusively and solely by violent and accidental means, their verdict must

The judgment appealed from is affirmed.

Marks, J., and Turrentine, J., pro tem., concurred.

A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on September 28, 1933.