Brow v. Mutual of Omaha Insurance

497 P.2d 933, 80 Wash. 2d 701, 1972 Wash. LEXIS 620

• Court: Washington Supreme Court
• Decided: June 8, 1972
• Docket: 42071
• Status: Published

Opinions

Wright, J.

The question before the court on this appeal is a narrow one and strictly a matter of procedure.

Faye L. Brow, the appellant, is the widow of William J. Brow. On June 4, 1967, appellant and her husband went to the Seattle-Tacoma International Airport from whence Mr. Brow left for Florida on a trip from which he never returned. They went to a counter maintained by respondent for the sale of insurance policies. An agent of respondent was in charge of the counter.

Mr. Brow bought an insurance policy. Within 10 minutes after that Mr. Brow left on his plane. Appellant kept the policy. On June 11, 1967, Mr. Brow was killed during a hydroplane race in Florida when the boat he was operating, Miss Budweiser, capsized and threw him out.

Following the death of William J. Brow, appellant filed a claim with respondent. The claim was rejected. This' action followed.

At the trial appellant was the only witness. She testified her husband asked several times if the policy would cover him no matter what he was doing. The agent at the airport counter told him it would. Appellant testified the matter of full coverage was gone over three or four times.

Respondent relies on two matters for defense. First, it contends the policy covered only travel accidents because a “no” was written on the application for the item “Other accidents (Nonoccupational).” The mark following that item was actually illegible on the carbon copy which was in evidence. Second, it contends the accident was occupational, and, hence, would not be covered in any event. Mr. Brow was a distributor for Vita-Milk Dairy. Several times each year he drove a hydroplane in races, for which he received 25 per cent of the winnings, his expenses, and wages for time he spent working on the boat.

After appellant’s testimony, the trial court dismissed. We are committed to the rule that upon a motion to dismiss at the end of plaintiff’s case, the court, in a jury-case, must view the evidence and reasonable inferences therefrom in the light most favorable to plaintiff. Gaasland Co. v. Hyak Lumber & Millwork, Inc., 42 Wn.2d 705, 257 P.2d 784 (1953). In a nonjury case the court may weigh plaintiff’s evidence- and enter findings of fact and conclusions of law based thereon. Lambuth v. Stetson & Post Mill Co., 14 Wash. 187, 44 P. 148 (1896); Hodges v. Gronvold, 54 Wn.2d 478, 341 P.2d 857 (1959); Maynard Inv. Co. v. Mc-Cann, 77 Wn.2d 616, 465 P.2d 657 (1970). The trial court may likewise rule as a matter of law at the end of plaintiff’s case.

If the trial court weighs the evidence, a reviewing court will accept findings of fact supported by substantial evidence. Enterprise Timber, Inc. v. Washington Title Ins. Co., 76 Wn.2d 479, 457 P.2d 600 (1969). If the trial court has ruled as a matter of law, then the reviewing court will consider whether the law was correctly stated and applied. N. Fiorito Co. v. State, 69 Wn.2d 616, 419 P.2d 586 (1966).

In the instant case the court entered findings of fact and conclusions of law. That is generally regarded as a strong indication that the court did weigh the evidence. It is important to a reviewing court to know which way the trial court acted.

We said in N. Fiorito Co. v. State, supra:

If findings of fact are entered, and if, for any reason, it cannot readily be determined therefrom which approach the trial court adopted in ruling upon the motion before it, we look to the trial court’s oral or memorandum decision for guidance.

After examining both the oral opinion and the findings of fact, it clearly appears the trial court did weigh the evidence. There are reasonable inferences from the record to support the decision of the trial court. We affirm.

Hamilton, C.J., Finley, Neill, and Stafford, JJ., concur.