Throop v. Western Indemnity Co.

CONREY, P. J.

On the seventeenth day of August, 1916, the defendant executed and delivered to Hilda E. Throop two policies of insurance against loss resulting from

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bodily injuries to her effected directly and independently of all other causes, through accidental means (suicide or any attempt thereat, whether sane or insane, not covered); the beneficiary of said policies in the event of death thereunder being the plaintiff Charles B. Throop. This action is brought upon those policies to recover the compensation therein named on account of the death of Hilda E. Throop on the thirteenth day of September, 1916, occurring by reason of bodily injuries sustained in a manner within the terms of said policies. Upon issues properly framed the court found that “on September 13, 1916, said Hilda É. Throop was killed in the county of Riverside, state of California, by means of the discharge of a loaded shotgun in the hands of the plaintiff, and actually discharged by the plaintiff herein; but that said Hilda E. Throop did not thereby sustain bodily injuries, or bodily injury, which were effected directly and independently or directly or independently of all other causes through accidental means; that the discharge of said gun, as aforesaid, was occasioned by the gross negligence of said plaintiff and because and by reason of the fact that said plaintiff failed to use and did not use due or ordinary or any care or caution in handling the same; that said Hilda E. Throop died on the same day, to wit: September 13, 1916, and that her said bodily injuries, or injury, were not caused by suicide or any attempt thereat on her part.” Judgment was entered in favor of the defendant and the plaintiff appeals therefrom.

Appellant contends that the judgment should be reversed, (1) because the findings show that the death was caused by accidental means; (2) because the findings are inconsistent and conflicting. The other points relied upon for reversal relate to alleged insufficiency of the evidence and need not be considered on this appeal, if either of the foregoing stated contentions of appellant is sustained.

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The finding that the said Hilda E. Throop “did not thereby sustain bodily injuries, or bodily injury, which were effected directly and independently or directly or independently of all other causes through accidental means,” considered separately and apart from the remainder of the finding, is sufficient to support the judgment. The real question presented is whether or not the finding as last above quoted is necessarily inconsistent with the probative fact