Knight v. Metropolitan Life Insurance

KRUCKER, Judge

(dissenting) :

I respectfully submit that I am unable to-agree with the conclusion reached by the other members of this Court.

The facts and circumstances surrounding-the event are fairly stated in the majority opinion. I also agree that the magazine-articles describing Acapulco’s “La Quebrada” divers and the letter from a Captain Jimmy Jamison should not be considered by this Court and the appellee’s motion to-strike these portions of appellant’s reply-brief should be granted.

The trial court had to rely upon the testimony of an alleged expert, whose admitted *477experience with diving was only up to ten meters, in order to reach the conclusion of law as to the reasonable man test.

Here we have in the deceased an experienced diver, aged 22, who has been diving from heights up to 75 feet or more and who had jumped from the same dam when he was 17 or 18 years of age.

There is no contention by anyone that this young man intended to commit suicide or to injure himself in any way. He fully believed he could make the dive successfully and without injury and lost his life through a miscalculation and loss of balance by turning over just a little before striking the water. The latest pronouncement by our Supreme Court on this subject is contained in Malanga v. Royal Indemnity Company, 101 Ariz. 588, 422 P.2d 704 (1967), which states, in part:

“In the following language, this Court, in the Fuqua case, in dealing with the term ‘accidental means’ defined the word ‘accidental’, as used in accident insurance policies, and prescribed the test to be followed in order to determine if a result is ‘accidental’, 40 Ariz. 154, 155, 10 P.2d 958, 960:
‘The third assignment of error is based upon the theory that the evidence shows conclusively that Fuqua’s death did not result from "accidental” means. Let us then determine the meaning of the word “accidental,” as used in insurance policies of this nature, [emphasis added];
* * * * * *
‘All effects are the natural, probable, and indeed inevitable consequences of definite acts or courses of action, or we must abandon our entire present system of epistemology. The so-called “accident” is as much the inevitable consequence of one specific act or course of action as is a mathematical conclusion the inevitable result of certain premises.
‘If the cases supporting defendant’s definition are analyzed carefully, it will be found that what they really mean is that an effect which was or should have been reasonably anticipated by an insured person to be the natural or probable result of his own voluntary acts is not accidental. 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 flozv from his own acts, it is accidental. The test is, zvhat effect should the insured, as a reasonable man, expect from his own actions under the circumstances. Let us apply this test to the evidence.’ (emphasis added).
“Applying the above definition and test to the evidence in this case we conclude that the injury of Jack Ellis was ‘accidental’ within the meaning of the accident insurance policy. There is no evidence that the ‘insured, as a reasonable man’, expected or anticipated or desired the injury which resulted from his voluntary acts. He was not attempting to commit suicide or to injure himself. He did not suspect, or know, or have any reason to know that alcohol and barbiturates, when consumed in the quantities which he took, would produce an injury resulting in death. Both the injury and the death were ‘accidental’, as the term is commonly used and understood.”

In this case, the deceased had no intention to injure himself and there is no evidence that he would have reason to believe that injury would result from his voluntary acts. I believe the Court’s conclusions of law are erroneous and, therefore, the judgment should be reversed and entered in favor of the appellant.