Knight v. Metropolitan Life Insurance

428 P.2d 137, 5 Ariz. App. 473, 1967 Ariz. App. LEXIS 466
CourtCourt of Appeals of Arizona
DecidedMay 19, 1967
DocketNo. 2 CA-CIV 238
StatusPublished
Cited by1 cases

This text of 428 P.2d 137 (Knight v. Metropolitan Life Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Knight v. Metropolitan Life Insurance, 428 P.2d 137, 5 Ariz. App. 473, 1967 Ariz. App. LEXIS 466 (Ark. Ct. App. 1967).

Opinions

MOLLOY, Judge.

This is an appeal from a judgment finding no liability under a life insurance policy. Appellant, Bernice M. Knight, is the mother of Jackie E. Knight, a single man, who was killed on June 28, 1964, in Gila County, Arizona, as a result of a dive from the top of Coolidge Dam.

The case was tried by the court, sitting without a jury, and the court made findings of fact and conclusions of law as follows:

“FINDINGS OF FACT
“1. Jackie E. Knight, an adult male, was an insured under a group accident insurance policy issued by Metropolitan Life Insurance Company.
“2. The insurance policy provided that if Jackie E. Knight sustained bodily injuries solely through violent, external and accidental means, and within ninety days thereafter suffered death as a direct [474]*474result of such bodily injuries independently of all other causes, Metropolitan Life Insurance Company would pay the beneficiary thereof Bernice M. Knight, Five Thousand Dollars ($5,000.00).
“3. Jackie E. Knight was an experienced diver.
“4. On June 28, 1964 at approximately daybreak Jackie E. Knight in the presence of others intentionally dived from a railing atop the west intake tube of the Coolidge Dam into the San Carlos Lake a distance in excess of 139 feet.
“5. As a direct result of this intentional act of diving the insured sustained injuries which resulted in his almost immediate death.
“6. Jackie E. Knight did not slip or fall from atop the Dam.
"Conclusions of Law
“The deceased as a reasonable man under the circumstances should have anticipated that death or serious bodily injury would result as the natural and probable consequence of his own voluntary act. Such is not accidental.
“Applying this test to the evidence there can be no recovery against the said Metropolitan Life Insurance Company.”

At the time of his death, Jackie E. Knight was 22 years of age. He was an experienced diver and had been diving since he was a boy. Many times he had dived from high places, some up to 75 feet, and had on one previous occasion, jumped, feet first, from the top of Coolidge Dam into the lake. The distance to the water on the date of his death was approximately 139 feet.

The testimony surrounding the actual diving was, in part, as follows:

“Q Now, at the dam you mentioned Jackie said he wanted to dive off. What action did he take ?
“A Oh, he just said that he wanted to dive, and nobody thought any more about it.
“Q Did he get up on the railing?
“A Yes, the first time.
“Q Which railing? The one towards-Globe ?
“A Yes.
“Q Did it appear that he was going-to dive to you?
“A Yes, uh-huh.
“Q Okay, then what happened?
“A Well, Bob just reached up and' grabbed him and jerked him down. He-was straightening himself out getting-ready to dive, and we thought it was more or less of a joke for a while, and so-Bob grabbed him and wrestled him down,, just playing more or less.
“Q And then what did Jackie do?
“A He laughed and said, ‘What’s the-matter ? Don’t you think I can make it ?’’ Bob said, ‘Yes, but we’re going to leave-pretty soon anyway and that’s a long way coming back up.’
“Q Then what happened?
“A Well, then we laid around a little-while and Jackie just jumped up on the-ledge and took off in a swan dive.
* * * ‡ * *
“Q Then after you saw him dive what did you do?
“A I went to the railing and watched' him fall-—watched him finish his dive.
“Q Then what was the form of his-dive ?
“A He started out with a real real nice swan dive, but I guess what happened is he just misjudged his distance- and started going down, and it was real pretty, and then he started to turn over real slow, and just probably 10 feet before he got to the water he was on his-shoulders, and then on his back. But what for he hit on his back you couldn’t, beat it for a swan dive. It was’ a real pretty swan dive.”

Bodily injuries from the dive resulted in almost immediate death. We are again concerned with what is an “accidental”' death.

In Malanga v. Royal Indemnity Company, 101 Ariz. 588, 422 P.2d 704 (1967), our Supreme Court reaffirmed the test of [475]*475California State Life Ins. Co. v. Fuqua, 40 Ariz. 148, 10 P.2d 958 (1932), as to what Is an “accidental” injury:

" 'Or to put it in the affirmative form, if the result is one which in the ordinary course of affairs would not be anticipated by a reasonable person to flow from Ms own acts, it is accidental. The test is, what effect should the insured, as a reasonable man, expect from his own <actions under the circumstances. Let us apply this test to the evidence.’”

101 Ariz. at 592, 422 P.2d at 708.

This test is exactly the test used by the trial court. There is a specific finding by the trial court1 that the insured “ * * * :as a reasonable man under the circumstances should have anticipated that death or serious bodily injury would result as the natural and probable consequence of his own voluntary act.”

This finding of the trial court should be sustained if there is any credible evidence In the record in support thereof. Rossi v. Stewart, 90 Ariz. 207, 367 P.2d 242 (1961). The only witness testifying as an expert at the trial was a high school gymnastics swimming and diving coach, with approximately 10 years experience in various phases of coaching and diving, including Olympic competition. Previously the witness had been successful in college-diving competition. The witness had never dived headfirst from a height exceeding 10 meters, but was acquainted with feats of diving by various exhibitionists from heights ranging from 80 feet up to, in the case of the Acapulco divers, “possibly” as high as 130 feet.

The probabilities of injury from high diving appears to this court to be in an area in which a trier of fact might be aided by expert testimony. See Udall, Arizona Law of Evidence § 23. As the trial judge commented during the trial:

“I don’t know; there must be a point beyond which a person just can’t dive. For example, if you were to try to dive into a lake out of an airplane at 500 miles an hour you would say-—well, it is practically suicide. Just where the point is between that and jumping—if I would jump off two feet I’d think I am doing something. There is a point in between.

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Related

Knight v. Metropolitan Life Insurance Company
437 P.2d 416 (Arizona Supreme Court, 1968)

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Bluebook (online)
428 P.2d 137, 5 Ariz. App. 473, 1967 Ariz. App. LEXIS 466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knight-v-metropolitan-life-insurance-arizctapp-1967.