Rooney v. Mutual Benefit Health & Accident Ass'n

WHITE, J.—This action was instituted by plaintiff to recover the principal amount of two policies of health and accident insurance issued by defendant to Preston E. Rooney, plaintiff’s husband, by reason of the death of her husband.

By her complaint plaintiff alleged that the death of her husband resulted from injuries sustained within the meaning of the insuring clause of each policy of insurance. The wording of the insuring clause in each policy was identical.

[887]By its answer defendant denied that the insured’s death resulted from injuries sustained within the meaning of the insuring clause of the policies issued to the insured.

The cause was tried before a jury, and at the conclusion of the trial the court directed the jury to return a verdict for plaintiff. From the judgment entered upon such verdict defendant prosecutes this appeal.

The facts are not in dispute and may be thus epitomized: On the evening of May 26, 1944, the deceased, Preston E. Rooney, was at George’s Chili Parlor, a small restaurant serving meals and beer, located in the 1400 block on West Seventh Street in the city of Los Angeles. During the period of time the deceased was in the restaurant he became involved in an argument with a stranger. In the course of .the argument the deceased invited the stranger to come outside the restaurant, saying to him, in effect, “come on outside, we will settle it out there.” The deceased proceeded out to the sidewalk, followed by the stranger. The deceased attempted to strike the stranger, and the latter struck a blow at the deceased, causing him to fall, striking his head upon the concrete or paved portion of the sidewalk, whereby he sustained injuries described by the Chief Autopsy Surgeon for the Coroner’s Department of Los Angeles County as “contusion of the brain and subdural hemorrhage due to basal fracture of the skull,” and from the effects of which injuries decedent died that evening.

The insuring clause contained in each of the policies of insurance issued to the insured reads as follows:

“Mutual Benefit Health and Accident Association of Omaha (herein called Association) hereby insures Preston E. Rooney (herein called the Insured) of City of Los Angeles, State of California, against loss of life, limb, sight or time, sustained or commencing while this policy is in force, resulting directly and independently of all other causes, from bodily injuries sustained during the term of this policy or renewal thereof, through purely Accidental Means (Suicide, sane or insane, is not covered), and against loss of time beginning while this policy is in force and caused by disease contracted during the term of this policy or renewal thereof, respectively, subject, however, to all the provisions and limitations hereinafter contained.”