Opinion · Colorado Court Opinions

ROTH v. CAPITOL LIFE INS. CO., 36 Colo. App. 46 (1975)

Lois Roth v. Capitol Life Ins. Co., 538 P.2d 125 (Colo. App. 1975)

Type: Opinion
Court: Colorado Court Opinions
Jurisdiction: Colorado
Date: 1975-04-15
Topic: general

ROTH v. CAPITOL LIFE INS. CO., 36 Colo. App. 46 (1975) (538 P.2d 125) Lois Roth v. Capitol Life Insurance Company No. 74-359Colorado Court of Appeals.

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ROTH v. CAPITOL LIFE INS. CO.,36 Colo. App. 46(1975)

(538 P.2d 125)

Lois Roth v. Capitol Life Insurance Company

No. 74-359

Colorado Court of Appeals.

Decided April 15, 1975. Rehearing denied May 6, 1975. Certiorari granted

August 11, 1975.

In action to recover under double indemnity provisions of life insurance policy, trial court ruled death of insured was accidental, rather than being suicide, and insurer appealed.Affirmed

1.INSURANCE—Double Indemnity Provisions — Not Exclusions — Burden onBeneficiary.In action to recover under double indemnity provisions of life insurance policies, although it is true that the insurer would have the burden of proving a defense based upon an exclusion in the policies, the double indemnity provisions are not exclusions, and therefore, to recover under those provisions, the beneficiary has the burden of proving the death was caused by accident rather than suicide.

2.APPEAL AND ERROR—Lengthy Findings — One Statement — Misconstruction —Burden of Proof — Corrected — Harmless Error.In action to recover under the double indemnity provision of two life insurance policies, where the court in one portion of its lengthy findings of fact and conclusions of law seemingly misconstrued the law as to the burden of proof, but then clearly stated it correctly, the earlier statement must be considered at most harmless error.

3.INSURANCE—Double Indemnity Recovery — Fact Situation — ConsistentWith Suicide — Accident — Not Precluded — Finding of Trial Court —Affirmed.In action to recover under double indemnity provisions of life insurance policy, although the circumstances surrounding decedent's death when he drove his automobile into the last car of a moving train is consistent with a finding of suicide, the fact situation was not so persuasive of suicide as to exclude any other reasonable hypothesis to be drawn from the circumstances, that is, reasonable minds could conclude the cause of death to be accident, not suicide; thus, the determination by the trier of fact that the cause of death was accidental must be affirmed.

Appeal from the District Court of the City and County of Denver, Honorable Clifton A. Flowers, Judge.Page 47

Harry L. Hellerstein, for plaintiff-appellee.

Clark, Martin Pringle, Warren Martin, for defendant-appellant.

Division III.

Opinion by JUDGE STERNBERG.

The plaintiff was the beneficiary of two group insurance policies on the life of her late husband. Both policies had been issued by the defendant, were in the amount of $8,000, and each provided for an additional payment of $8,000 should the insured's death be caused by accident.

The insured died on June 15, 1973, as a result of a car-train collision. The defendant paid the beneficiary $8,000 on each policy. However, because it concluded the cause of death to be suicide, not accident, it refused to pay the double indemnity amount on the policies. The beneficiary filed suit, and the trial court concluded that death was caused by accident, not suicide, and thus held the defendant liable for an additional $8,000 payment on each policy. We affirm.[1,2]The insurance company contends first that the court erroneously placed the burden of proof on it to prove suicide, rather than requiring the beneficiary to prove accident. It is true that while the insurer would have the burden of proving a defense based upon an exclusion in the policy, the double indemnity provisions are not an exclusion, and therefore the beneficiary has the burden of proving that death was caused by accident rather than suicide.Lockwood v. Travelers Insurance Co.,179 Colo. 103,498 P.2d 947. It is also correct that at one point in its findings of fact the court stated that the burden of proof was on the defendant to prove the cause of death. We note, however, that on at least two occasions during the trial, the insurer stated the burden of proof just that way. These remarks presumably caused the court's misstatement. At any rate, the court unequivocally found that "the plaintiff has sustained her burden of proving by a preponderance of the evidence that the death of the insured resulted from an accidental bodily injury . . . . " That finding indicates that thePage 48court properly placed the burden of proof. Where the court has in one portion of its lengthy findings of fact and conclusions of law seemingly misconstrued the law, but then clearly states it correctly, we must consider the earlier statement to be at most harmless error. We do not presume error, but on the contrary, all reasonable presumptions are that the trial court's judgment was correct.Littleton v. Employers FireInsurance Co.,169 Colo. 104,453 P.2d 810;Julius Hyman Co. v. VelsicolCorp.,123 Colo. 563,233 P.2d 977.

Relying uponNational Farmers Union Life Insurance Co. v. Norwood,147 Colo. 283,363 P.2d 681, the insurer contends that this judgment must be reversed because the only reasonable inference as to cause of death was suicide. InNorwoodthe Supreme Court reversed a trial court's judgment which found accidental death rather than suicide. There the decedent had been shot three times at close range by a .22 caliber pump action rifle which he was carrying. Two shots were in the chest and were not fatal, but the third was to the head and caused death. While one of the two shots in the chest pierced the outer clothing worn by the decedent, the other did not, indicating that the decedent's jacket, coveralls and shirt were pulled back, and the gun muzzle pressed against his undershirt. The parties ruled out the possibility of homicidal death. Clearly, to have inferred from the evidence that death was accidental was error. No reasonable hypothesis other than suicide could have been drawn from such facts.

The present case is more akin toRobinson v. New York Life Insurance Co.,30 Colo. App. 83,490 P.2d 81. There, the deceased was in his fifties and in poor health. While on vacation in Hawaii with his wife and a private nurse, he awoke in the small hours of the morning, and went to the balcony, of his 20th floor hotel suite. A police investigator testified that the widow told him that the deceased was standing on the balcony, that when asked if he wanted a drink he became angry, pushed her away, and began to climb over the wall and railing, and that she went to him and attempted to hold him but he once again pushed her away and went over the side to his death. At the time of trial, however, the wife merely testified that she did not remember the details of her husband's death, nor the facts related to the investigator. The jury concluded that the cause of death was notPage 49suicide. This court affirmed the judgment holding it to be within the province of the trier of fact to make the determination of the cause of death.

In the instant case, the evidence was essentially undisputed, but the inferences to be drawn therefrom are in sharp conflict. On the one hand, the decedent had attempted suicide with a gun approximately one year earlier. At the time of his death, he was 56 years old, and a week earlier had quarreled with his wife of 35 years, resulting in his leaving the family home. He gave some of his cash to his daughter-in-law. He talked with a waitress on the afternoon of his death, telling her goodbye. He drove his automobile at a high rate of speed into the front of the ninth and last boxcar of a train moving at 30 miles per hour. Warning devices were operating at the intersection, and the train's whistle was blowing. Just before this collision took place, he had just missed colliding with the same train.

On the other hand, there was testimony that the insured had not slept for 30 hours, had been drinking heavily, and had a blood alcohol measurement of .165. A clinical toxicologist testified that one with such a blood alcohol count would be a "falling down drunk," and "a totally incompetent driver." The doctor stated that the insured's ability to perceive the train and warning signals would be impaired, and that he would have difficulty in performing any task involving fine motor coordination which in turn would interfere with his ability to react to an emergency. Finally, this expert testified that the insured's reasoning ability and judgment would be impaired by the drinking, and that all these impairments would be aggravated by lack of sleep.

In addition, while the insured had given his daughter-in-law some money, he had requested and received a receipt for it and had retained other cash himself. Witnesses testified that he appeared to be in a good jovial mood on the evening before his death, that he had purchased gifts and other items which were still in his possession, that he was discussing buying a new car and a mobile home, that he had paid his rent in advance, and was making plans to go to work that very night.

Based upon the evidentiary facts, the court concluded that the death resulted from accidental bodily injury. The court stated that:

"The only evidence that the insured intended to commit suicide . . . was thePage 50statements he made to the waitress at the restaurant shortly prior to his death when he was so intoxicated that he was staggering. But can it be said that these expressions of the insured, to the effect that he was going to commit suicide, taken in connection with all other facts and the circumstances in the case, leave no reasonable conclusion than that of suicide? The court thinks not."

The court noted that there was a fully loaded .38 caliber pistol in the automobile at the time of death. Recalling that a previous effort at suicide had been by means of a gun, the court inferred that if the insured had intended suicide, "it is just as reasonable to conclude that he intended to do it by shooting himself with a gun, as he had previously done, rather than by driving his automobile into the side of a moving train." The court then stated that people do drive automobiles into the sides of moving trains even when sober and without intending self-destruction.

Finally, the court inferred from the evidence that the insured:

"May very well have been on his way home . . . but, because of the admittedly intoxicated condition he was in, mistakenly took the wrong turn, and because of the significant impairment of his peripheral vision he may not have even observed the train crossing in front of him in sufficient time to properly react."

Pointing out that "in only a matter of a few seconds, the train would have completely cleared the crossing and there would have been no collision," the court stated that if he had "voluntarily placed himself in a position of danger, even recklessly though it may have been, and through accident, by reason of his impaired judgment, perception and ability to react, due to his intoxicated condition, drove his automobile into the side of the train, the cause of his death would have been the result of an accidental bodily injury . . . . "[3]The respective position of a trial court and an appellate court regarding inferences drawn from testimony is stated inGosch v. Gomez,168 Colo. 296,450 P.2d 1016, as follows:

"It is the peculiar responsibility of the trial judge to determine what inferences should be reasonably drawn from the evidence he hears, and the drawing of or the refusal to draw inferences by a trial judge will not bePage 51disturbed by us unless reasonable minds could not differ on the result."

The trial court heard the testimony of the witnesses, observed their demeanor on the witness stand, and drew its inferences from that evidence. While we might have found differently had we been in the position of the trier of fact, we are not in that position, and it would be improper for us to usurp that function. We find the fact situation in the instant case not to be so persuasive of suicide as to exclude any other reasonable hypothesis to be drawn as was the case inNorwood, supra.In our view, reasonable minds could conclude the cause of death to be accident, not suicide. Thus, we must affirm the trier of fact.

Judgment affirmed.

JUDGE RULAND concurs.

JUDGE VAN CISE dissents.

JUDGE VAN CISE dissenting:

I must respectfully dissent.

The evidence is essentially undisputed, and from that evidence "no reasonable hypothesis other than suicide could have been drawn." The insured once before attempted suicide, and had talked of suicide thereafter. He was separated from his wife, and had been upset and depressed for the week before and on the day of his death. An hour before his death, he told a waitress friend that this was going to be his last meal and that he had "had it." Then, in broad daylight, with clear visibility, (quoting from the findings of the court):

"A short time prior to the collision in question, the insured drove his car in a westerly direction across the mainline railroad tracks at a point approximately five hundred yards north of Highway 402. The train was approaching from the north at this time at a speed of about 30 miles per hour, and was then about fifty yards from this particular crossing. There was an engineer in the engine at the front of the train and a brakeman in the caboose at the rear of the train. After crossing the track at this point, the insured remained in view of the engineer and the brakemanPage 52continuously up to the time of the collision between the insured's automobile and the train. The insured thereupon turned his vehicle to the south on a road just west of and parallel to the mainline track and proceeded ahead of the train to the intersection of that road with Highway 402. Upon arriving at Highway 402 the insured made a right turn and proceeded westbound on Highway 402 to a point estimated at between 200 and 300 yards west of the mainline track. He was observed to make a U-turn and to either slow down or come to a complete stop momentarily. About this point in time the engine of the train was just crossing Highway 402. The insured was then observed to proceed eastbound on Highway 402 and to accelerate his automobile to a speed estimated to be between 50 and 70 miles per hour at which time his automobile struck the right-front portion of the ninth boxcar of the train, as previously indicated, as a result of which collision the insured was killed. It did not appear to either the engineer or the brakeman that the insured made any effort to slow or stop his vehicle prior to its impact with the train and no skid marks left by the insured's vehicle were found at the scene.

. . . .

"There were red signal lights and a bell in operation at the railroad crossing to warn vehicular traffic on Highway 402 of the approach of the train. The train's whistle was blowing at the time of the collision and had been blowing continuously for about a quarter of a mile to the north as the train approached the crossing where the collision occurred."

As inNational Farmers Union Life Insurance Co. v. Norwood,147 Colo. 283,363 P.2d 681, there is only one conclusion that can reasonably be drawn. It was not an accident; it was intentional self-destruction.

That the decedent had been drinking does not change this conclusion. In his depression and despondency, he obviously intended to drink himself into a condition in which he could accomplish the suicide which had been in his mind for a long time.

The judgment should be reversed and the complaint should be dismissed.Page 53