FAUST, District Judge.
This is an appeal from a judgment against the insurance company, the appellant herein, in favor of the beneficiary, the respondent herein, on the double indemnity provision of a life policy issued to Glen W. Griffin, the insured, who was a son of the respondent. The double indemnity provision of this policy became payable upon receipt of due proof ■of death as a result directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means — provided, however, that no accidental benefit should be paid if the death of insured resulted directly or indirectly from bodily or mental infirmity or disease in any form.
The principal question involved here is whether sufficient ■evidence was introduced by respondent to entitle her to
recover under the double indemnity provision of the policy. It was admitted that the face value of the life policy had been paid in full.
Glen W. Griffin, the insured, had been surrendered by his bondsman on the afternoon of May 17, 1940, and incarcerated in the Salt Lake City jail for some offense which he had committed. There was some testimony to the effect that insured was a frail man and had been ill at home for about three days prior to his incarceration in the city jail. When he was brought to the city jail he appeared ill and weak. In the evening of the same day he was placed in a cell which was approximately 4% feet wide by 8 feet long, and which contained bunks fastened to the wall running lengthwise of the room. These bunks were supplied with mattresses and bedding. The only other article in the room was a toilet, which in the insured’s cell was placed in the northeast corner. The lower bunk was approximately 2% to 3 feet from an uncovered cement floor. The cell in which Griffin was placed was one of a tier of four and opened into a runway. None of the cells were locked and the runway and all the cells were accessible to all the inmates at all times.
About an hour before the injury occurred the insured was seen by one of the inmates sitting on the lower bunk holding his head in his hands. This same inmate was sitting close to Griffin’s cell in the runway reading a book when he was startled by a thud. He immediately entered Griffin’s cell and found him lying on his back on the floor with his head close to the toilet. Griffin was bleeding profusely, the blood seeming to come from the back of his head. He appeared dazed and semi-conscious. He could not talk coherently. Some first aid was attempted by the inmates and the jailer was called. He attempted to administer a sedative which is sometimes given to sufferers of epileptic seizures. Griffin was in a dazed condition and would make attempts to get up and would fall down unless restrained so he was placed in the runway on a mattress to prevent further falls from the bunk. There was some testimony that he may have
fallen several times during the night. No doctor was called to examine the insured until ten o’clock the next morning. At that time he was unconscious. The doctor ordered him to be taken to the County Hospital and he died there later in the day.
Dr. C. R. Openshaw, the city’s physician who attended insured, stated the cause of death in the death certificate to be basal skull fracture due to a fall while in an epileptic attack.
A post mortem which was performed by this doctor the afternoon of insured’s death revealed that the cause of his death was a basal skull fracture, and that he had been suffering from chronic alcoholic gastritis, atrophic cirrhosis of the liver, and a diseased condition of the brain which could have been due to chronic alcoholism; this condition if it had been allowed to progress might have affected his mental competence. That the disease of the brain would have progressed to the point where it would affect his mental competence was not certain depending upon whether insured would have changed his mode of life. The disease was not incurable. It sometimes, but not always caused convulsions similar to epileptic seizures. There was no testimony that insured had ever suffered from convulsions.
Dr. C. R. Openshaw, the city physician who attended insured, stated the cause of death in the death certificate to be a basal skull fracture due to fall while in an epileptic attack. Dr. Openshaw testified that he had arrived at his conclusion that the basal skull fracture was due to a fall while in an epileptic attack from a history of the patient obtained from persons in the jail; that there is no pathology to epilepsy and therefore he did not know whether insured suffered an epileptic attack or not; that he relied on the stories told him at the jail by the jailor and other persons there.
The insurance company moved for a directed verdict in favor of the defendant on the grounds that the evidence did not tend to prove that the death of insured occurred as
a result directly and independently of all other causes of bodily injuries effected solely through external, violent, and accidental means; but that the death of insured resulted directly or indirectly from bodily or mental infirmity and disease.
This motion was overruled by the court and the case submitted to the jury on the issue of facts involved, and instructed on the law to be applied. The court also submitted to the jury a special interrogatory as follows:
“Was the fall which resulted in the final injury to the insured caused by the epilepsy or diseased condition of insured’s brain?”
The jury found the answer to be “No.” This interrogatory is of no value because there was no evidence as to what actually caused the fall.
Appellant has assigned as errors the failure of the court to grant its motion for a directed verdict, and in charging the jury as set forth in its instructions numbered 5 and 6. We will first determine whether the court erred in failing to grant a motion for a directed verdict in favor of defendant.
From the evidence introduced in this case it is clear that there is no dispute as to the fact that the direct cause of the death was a basal skull fracture which was the result of a fall. Griffin did not die from a disease which he had previous to the fall, nor from a disease aggravated by the fall and which in concurrence with it caused death. No one saw how this fall came about. On these facts alone, we are of the opinion there was sufficient evidence to be submitted to the jury on the question as to whether insured met his death as a result directly and independently of all other causes of bodily injuries effected solely through external, violent and accidental means. For the reader who desires a fairly exhaustive annotation of the subject, we refer him to the annotation in 131 A. L. R. commencing on page 240. The plaintiff established her burden of proof. In the case of
Browning
v.
Equitable Life
Assur. Co.,
94 Utah 570, 80 P. 2d 348, this court has laid down the rule that the burden of going forward with the proof is on the insurer to establish that the injury or death ■came within the exclusion clause of the policy. Mr.
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FAUST, District Judge.
This is an appeal from a judgment against the insurance company, the appellant herein, in favor of the beneficiary, the respondent herein, on the double indemnity provision of a life policy issued to Glen W. Griffin, the insured, who was a son of the respondent. The double indemnity provision of this policy became payable upon receipt of due proof ■of death as a result directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means — provided, however, that no accidental benefit should be paid if the death of insured resulted directly or indirectly from bodily or mental infirmity or disease in any form.
The principal question involved here is whether sufficient ■evidence was introduced by respondent to entitle her to
recover under the double indemnity provision of the policy. It was admitted that the face value of the life policy had been paid in full.
Glen W. Griffin, the insured, had been surrendered by his bondsman on the afternoon of May 17, 1940, and incarcerated in the Salt Lake City jail for some offense which he had committed. There was some testimony to the effect that insured was a frail man and had been ill at home for about three days prior to his incarceration in the city jail. When he was brought to the city jail he appeared ill and weak. In the evening of the same day he was placed in a cell which was approximately 4% feet wide by 8 feet long, and which contained bunks fastened to the wall running lengthwise of the room. These bunks were supplied with mattresses and bedding. The only other article in the room was a toilet, which in the insured’s cell was placed in the northeast corner. The lower bunk was approximately 2% to 3 feet from an uncovered cement floor. The cell in which Griffin was placed was one of a tier of four and opened into a runway. None of the cells were locked and the runway and all the cells were accessible to all the inmates at all times.
About an hour before the injury occurred the insured was seen by one of the inmates sitting on the lower bunk holding his head in his hands. This same inmate was sitting close to Griffin’s cell in the runway reading a book when he was startled by a thud. He immediately entered Griffin’s cell and found him lying on his back on the floor with his head close to the toilet. Griffin was bleeding profusely, the blood seeming to come from the back of his head. He appeared dazed and semi-conscious. He could not talk coherently. Some first aid was attempted by the inmates and the jailer was called. He attempted to administer a sedative which is sometimes given to sufferers of epileptic seizures. Griffin was in a dazed condition and would make attempts to get up and would fall down unless restrained so he was placed in the runway on a mattress to prevent further falls from the bunk. There was some testimony that he may have
fallen several times during the night. No doctor was called to examine the insured until ten o’clock the next morning. At that time he was unconscious. The doctor ordered him to be taken to the County Hospital and he died there later in the day.
Dr. C. R. Openshaw, the city’s physician who attended insured, stated the cause of death in the death certificate to be basal skull fracture due to a fall while in an epileptic attack.
A post mortem which was performed by this doctor the afternoon of insured’s death revealed that the cause of his death was a basal skull fracture, and that he had been suffering from chronic alcoholic gastritis, atrophic cirrhosis of the liver, and a diseased condition of the brain which could have been due to chronic alcoholism; this condition if it had been allowed to progress might have affected his mental competence. That the disease of the brain would have progressed to the point where it would affect his mental competence was not certain depending upon whether insured would have changed his mode of life. The disease was not incurable. It sometimes, but not always caused convulsions similar to epileptic seizures. There was no testimony that insured had ever suffered from convulsions.
Dr. C. R. Openshaw, the city physician who attended insured, stated the cause of death in the death certificate to be a basal skull fracture due to fall while in an epileptic attack. Dr. Openshaw testified that he had arrived at his conclusion that the basal skull fracture was due to a fall while in an epileptic attack from a history of the patient obtained from persons in the jail; that there is no pathology to epilepsy and therefore he did not know whether insured suffered an epileptic attack or not; that he relied on the stories told him at the jail by the jailor and other persons there.
The insurance company moved for a directed verdict in favor of the defendant on the grounds that the evidence did not tend to prove that the death of insured occurred as
a result directly and independently of all other causes of bodily injuries effected solely through external, violent, and accidental means; but that the death of insured resulted directly or indirectly from bodily or mental infirmity and disease.
This motion was overruled by the court and the case submitted to the jury on the issue of facts involved, and instructed on the law to be applied. The court also submitted to the jury a special interrogatory as follows:
“Was the fall which resulted in the final injury to the insured caused by the epilepsy or diseased condition of insured’s brain?”
The jury found the answer to be “No.” This interrogatory is of no value because there was no evidence as to what actually caused the fall.
Appellant has assigned as errors the failure of the court to grant its motion for a directed verdict, and in charging the jury as set forth in its instructions numbered 5 and 6. We will first determine whether the court erred in failing to grant a motion for a directed verdict in favor of defendant.
From the evidence introduced in this case it is clear that there is no dispute as to the fact that the direct cause of the death was a basal skull fracture which was the result of a fall. Griffin did not die from a disease which he had previous to the fall, nor from a disease aggravated by the fall and which in concurrence with it caused death. No one saw how this fall came about. On these facts alone, we are of the opinion there was sufficient evidence to be submitted to the jury on the question as to whether insured met his death as a result directly and independently of all other causes of bodily injuries effected solely through external, violent and accidental means. For the reader who desires a fairly exhaustive annotation of the subject, we refer him to the annotation in 131 A. L. R. commencing on page 240. The plaintiff established her burden of proof. In the case of
Browning
v.
Equitable Life
Assur. Co.,
94 Utah 570, 80 P. 2d 348, this court has laid down the rule that the burden of going forward with the proof is on the insurer to establish that the injury or death ■came within the exclusion clause of the policy. Mr. Justice Wolfe in a concurring opinion has analyzed the question as to whether the proviso in the section governing accidental death is to be treated as an exclusion clause. His analysis and conclusion in that regard are adopted and made part of this opinion.
As to the question of evidence, under R. S. U. 1933, 35-2-20 a certified copy of death is made “prima facie evidence in .all courts and places of the facts therein stated.” It is of course elementary that evidence of that type may be explained or contradicted by competent evidence. See
Bozicevich
v.
Kenilworth Mercantile Co.,
58 Utah 458, 199 P. 406,17 A. L. R. 346. After the insurance company had introduced the certified copy of the death certificate in this case which gave the cause of death as basal skull fracture due to fall while in epileptic attack, the plaintiff called the doctor who signed this death certificate and he testified that he had first seen insured at about 10:30 ■o’clock in the morning of the day insured died; that at that time he was unconscious; that persons present in the jail had told him insured had suffered an epileptic fit and had fallen; that there is no pathology to epilepsy and the post mortem which he performed the afternoon of the same day insured died did not reveal whether or not insured had epilepsy for the above reason; that the post mortem did reveal that insured suffered from atrophic cirrhosis of the liver, chronic alcoholic gastritis and a diseased condition of the brain commonly known as “wet-brain”; that this condition of the brain sometimes produced convulsions similar to ■epileptic convulsions, but did not invariably do so; that the diseased condition of insured’s brain was probably due to chronic alcoholism and had not extended to such a degree that it was incurable, but probably could have been cured had insured changed his mode of life. There was some
affirmative evidence that insured had not been known to have suffered from convulsions at any time during his lifetime, and that the statements of the persons at the jail as to the insured’s having suffered epileptic attacks were pure conjecture due to the environment in which they were placed and that their experiences had taught them that if one fell it was due to epilepsy or fights. It is our opinion, in view of the above testimony, that there was sufficient evidence introduced tending to contradict or explain the statements in the death certificate. We are of the opinion that the court did not err in refusing to grant defendant’s motion for a directed verdict in its favor.
The appellant also assigned as errors instructions Nos. 5 and 6 given by the court in its charge to the jury. Instruction No. 5 charged the jury as follows:
“If you find that the deceased, Walter Glen Griffin, had ailments: of the body or mind, by reason of which he had a weakened condition, not having normal powers of resistance, he might nevertheless have met his death by reason of external, violent, and accidental injuries; and if you find from a preponderance of the evidence that he suffered injuries caused by external, violent, and accidental means, and that such injuries were the real, direct, and efficient cause of his death, the plaintiff is entitled to recover, even though you may believe that a normal or more robust person would have had a greater capacity to resist such injuries, and might not have been killed by them.”
There was evidence in this case that the deceased was a frail man who appeared weak and sick and that he suffered from various ailments; although the evidence tended to prove that the sole cause of death was due to a basal skull fracture with its attendant hemorrhage into the skull, we do not believe from the above state of facts that the jury could have been misled by the instruction to the prejudice of the defendant, even though it is no doubt error to give instructions on
“a state of facts which there is no evidence tending to prove, or which the undisputed evidence in the case shows did not exist, even should
such instructions contain correct statements of law.”
Jensen
v.
Utah Railway Co.,
72 Utah 366, 270 P. 349, 358.
Instruction No. 6 reads as follows:
“The death certificate of Walter Glen Griffin has been admitted in evidence. Among other things, said certificate states, ‘due to fall in epileptic attack.’ You are instructed that such statement in. said certificate is not conclusive and may be contradicted or explained, by other competent evidence.”
Appellant does not claim that the instruction incorrectly states the law, but only that it singles out certain evidence to the prejudice of defendant. We do not believe there is any merit to the argument. There is no contention that the death certificate was introduced for any purpose other than to establish and prove cause of ■death. Cause of death was the only matter actually in issue. The fact of death was admitted. Even if the instruction might well have been worded differently, it was not prejudicial. It was proper for the court to instruct the jury that the declaration in the certificate as to cause of death was only prima facie evidence, and that it could be contradicted •or explained by other competent evidence.
The fact is that the doctor who filled out the death certificate admitted that in making such declaration he relied on statements of other persons at the city jail who had not seen the insured suffer any epileptic attack and had no knowledge on which to base their statements. Their statements to the doctor on which he relied were purely conjectural. The declaration in the death certificate was almost if not entirely destroyed by the admissions of the ones who were instrumental in causing such statement to be inserted. It is true that the doctor found a condition, which under certain circumstances might produce convulsions similar to epilepsy, but he gave no professional opinion under oath that the fall was caused by an attack of epilepsy, .and indeed in view of his admitted uncertainty as to causal factors the jury would have been justified in disbelieving
his opinion even if he had expressed an opinion under the circumstances.
The attempt to prove the decedent suffered epileptic attacks, did not rise beyond the level of conjecture or supposition. Hence, even if the instruction complained of was not correctly worded, appellant could not have been prejudiced. There was sufficient competent evidence to show that the insured fell, as a result of which he suffered a basal skull fracture and hemorrhage which produced death. In fact, there was no issue as to the immediate cause of death. The defendant insurance company claimed that the cause of the fall was a diseased condition, and there was no conclusive proof of the affirmative defense interposed by defendant, nor proof such as would entitle the defendant to a directed verdict.
Judgment affirmed. Costs to respondent.
LARSON, McDONOUGH, and MOFFATT, JJ., concur.