Spaid v. Cal-Western States Life Insurance

NEWSOM, J. I respectfully dissent.

While the question is a close and conceptually difficult one, given the precise terms of the insurance contract, I do not think it can be said that the sole means of death here was “external,” for appellant’s alcoholic ingestion, and related stuporous condition, clearly contributed materially to the sad accident which led to the present claim. (Spott v. Equitable Life Ins. Co. (1962) 209 Cal.App.2d 229, 232 [25 Cal.Rptr. 782, 98 A.L.R.2d 315]; Wommack v. Shenandoah Life Ins. Co. (D.S.D. 1979) 473 F.Supp. 757; McCallum v. Mutual Life Insurance Co. of New York (E.D.Va. 1959) 175 F.Supp. 3, affd. per curiam (4th Cir. 1960) 274 F.2d 431; Jones v. Liberty Nat. Life Ins. Co. (Ala. 1978) 357 So.2d 976; Weaver v. Home Security Life Insurance Company (1973) 20 N.C.App. 135 [201 S.E.2d 63]; Strowmatt v. Volunteer State Life Insurance Co. (Fla. 1965) 176 So.2d 563; Radcliffe v. Na*809tional Life & Accident Insurance Co. (Tex.Civ.App. 1957) 298 S.W.2d 213.)

I regard the reasoning of the court in McCallum v. Mutual Life Insurance Co. of New York, supra, 175 F.Supp. 3, 7, as particularly persuasive, for here, as there, the substance which choked appellant “was inside the body and on its way outside during the vomiting process ... in no sense ... an ‘external means.’”

I would affirm the judgment.

A petition for a rehearing was denied April 22, 1982. Newsom, J., was of the opinion that the petition should be granted. Respondent’s petition for a hearing by the Supreme Court was denied June 9, 1982. Richardson, J., did not participate therein.