Justice v. Inter-Ocean Casualty Co.

MR. PRESIDING JUSTICE FINCH Delivered the Opinion of the Court.

This is an appeal by the defendant from a judgment in favor of the plaintiff in an action on a policy of accident insurance, insuring plaintiff’s deceased husband “against death or disability resulting directly, independently, and exclusively of all other causes from bodily injuries effected solely through external, violent and accidental means”. In appellant’s opening brief it is said: “The question in this case is as to whether Mr. Justice died from the result of an alleged skull fracture sustained in the accident or whether he died from a stroke of apoplexy.” This statement is not quite accurate, because, even though the immediate cause of death may have been apoplexy, if the apoplexy itself was caused by the injuries received in the accident, then it would follow that such injuries were the proximate cause of the death.

The evidence shows that the deceased, who was of the age of sixty-five years and weighed two hundred pounds, had driven a Ford automobile for about seven years, but that on the day of the accident he was driving an Oakland coupe, that being the second time only that he had driven that make of automobile. A witness for the plaintiff testified that on the day of the accident, prior to its occurrence, “I went out with him . . . towards Gustine. Q. Did you go in his car? A. Yes, sir, the second time he

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ever went to Newman with that car. . . . But I was afraid; I told Mr. Justice, I think the machine was working all right but to go a little slow. . . . Sometimes he went fast; . . . I don’t think he could handle the brakes, it was a new car for him, you see. Q. Had you ever ridden with him in any other car? A. In the Ford. He used to drive it good. . . . Q. He was having trouble managing this new car? A. Yes, that day.”

The only witness who saw the accident, who was driving an automobile in the opposite direction from that in which the deceased was going, testified: “As he made the turn (in the road), he came out on the dirt road (on his right) and almost turned over, and as quick as he turned he shot right across the road (to his left) in front of us into the embankment. . . . Q. There is a slope from the road level down to the embankment ? A. Yes. Q. What was the condition of the dirt on the right side of the pavement as he approached you? A. It seemed to be loose. . . . Q. Before you saw the car turn, was the occupant sitting up or sloping in the car? A. He was sitting up at the steering wheel. Q. Sitting up directly behind the wheel? A. Yes sir. Q. Was that his position, so far as you could see, from the time you first saw him until he hit the embankment ? A. Yes sir. . . . The instant that it struck the embankment, the (right) door opened and he fell out head first. . . . He fell out on his head and turned over with his feet toward the embankment. . . . Q. You said ‘turned over. ’ You mean he did, not the automobile? A. No, he turned. ... Q. You described that you thought the car was coming rapidly, I believe. A. Yes sir.”