Zohner v. Sierra Nevada Life & Casualty Co.

SPENCE, J.

Plaintiff, as administratrix of the estate of the deceased, brought this action upon an accident policy. Judgment upon the verdict was entered in favor of plaintiff upon a trial by jury, from which judgment defendant appeals.

[87]

The policy, among other things, insured against death from bodily injuries effected through external, violent and accidental means “By the wrecking of any private passenger motor-driven car (motorcycle not included), in which the insured is riding .or driving, or by being accidentally thrown from such wrecked motor-driven car.” The complaint set forth all necessary allegations, including the allegations "That on or about the 5th day of October, 1927, at San Francisco, State of California, while said policy was in full force, the insured received personal injuries through external, violent and accidental means, to-wit, by the wrecking of a private passenger motor driven car in which the insured was riding and/or driving”; and “That by reason of said injuries, and as a direct result thereof, the said insured died on or about the 17th day of October, 1927.” The amended answer contained no denials except a denial based upon lack of information or belief that the alleged injuries were received by the wrecking of a private passenger motor-driven car in which the insured was riding or driving. In addition it was alleged in the amended answer that the policy excluded injuries, fatal or nonfatal, sus- ■ tained while violating law, and it was further alleged that the injuries were sustained while the insured was violating the law.

Upon the trial apparently neither side was able to produce any eye-witness to the accident. A witness residing near the scene of the accident at Cerritos and Ocean Avenues, testified that between 8 and 9 o’clock on the evening of October 5th, she heard a “large crash” while she was on the second floor of .her home. Upon looking out of her ' window she saw that an open touring car had run into a stone pillar at the southwest corner of the intersection and also saw another car proceeding easterly on Ocean Avenue. She observed the front end of the first ear near the pillar, the rear end on the street and a man (the deceased) stretched out on the sidewalk about 10 or 12 feet from the car. Some 5 minutes later, after telephoning the police, she went to the scene. Two other people raised the deceased' to the running-board of the car and went on leaving the deceased with the witness. The deceased seemed dazed and did not reply when spoken to. The witness held him on the running-board to prevent him from falling until the