
    HERNDON v. WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY.
    1. Appeal and Error—Admissibility op Evidence—Separate Record.
    A party to an action at law may not claim error in regard to admission of excluded testimony of which no special record or request to make a separate record was made and no explanation or justification for failing to do so given, since the Court of Appeals is in no position to pass upon the admissibility of such evidence whieh might have been offered (GCR 1963, 604).
    2. Insurance—Accident—Evidence—Question por Jury.
    The issue of whether or not fatal injuries of decedent insured were effected through accidental means was properly for jury and eould have supported its verdict either way, under proper instructions, where answer placed his intent in question and evidence adduced showed decedent had driven east upwards of 3 miles in the southerly lane for westbound traffic on divided highway having 3 lanes for westbound and 3 lanes for eastbound traffic, at or above the posted speed limit, ran several red traffic lights, and was avoided by several ears whieh swerved, before colliding head on with another car.
    3. Appeal and Error—Assignment op Error—Instructions—Opportunity to Object.
    An appellant is not precluded from assigning error on the giving or failure to give instructions notwithstanding he had not objected thereto before the jury retired, where the trial judge had not afforded him an opportunity to make such objection (GCR 1963, 516.1, 516.2).
    References por Points in Headnotes
    
       4 Am Jur 2d, Appeal and Error §§ 493, 516, 518.
    
       53 Am Jur, Trial §§ 219, 229.
    
       5 Am Jur 2d, Appeal and Error § 891.
    
       29A Am Jur, Insurance § 1956.
    
      4. Insurance — Accident — Instructions — Automobiles — Wrong Side of Road.
    Instruction in action for double indemnity for accidental death that limited jury to foreseeability and natural and probable results of decedent insured’s conduct in driving for upwards of 3 miles eastbound on the southerly lane of 3 lanes for westbound traffic during early morning hours before colliding head on with another ear held, reversible error, since jury should have been allowed to consider all of the aets preceding death in determining from the evidence whether deceased drove as he did knowingly or by mistake.
    Appeal from Macomb; Noe (Alton H.), J.
    Submitted Division 2 January 14, 1965, at Lansing.
    (Docket No. 235.)
    Decided May 17, 1965.
    Action by Josephine Herndon against Woodmen of the World Life Insurance Society for benefits under double indemnity clause in life insurance policy. 'Verdict and judgment for defendant. Plaintiff appeals.
    Reversed and remanded for new trial.
    
      Neale & Steeh (Robert F. Celia, of counsel), for plaintiff.
    
      Joslyn, Joslyn & Dean (Alan W. Joslyn and John W. Appleford, of counsel), for defendant.
   T. G. Kavanagh, P. J.

This is a suit to collect the additional amount claimed to be due on a life insurance contract which provided for such payment when the insured died as the “result of bodily injury effected solely through external, violent and accidental means”.

The insured died as a result of injuries received in an automobile collision and it is therefore not in dispute that the “means” of the injuries were external and violent; the question is were they “accidental”.

It appears from the testimony that the deceased drove east on Eight Mile road in a westbound lane and collided practically head on with another car. Eight Mile road is a divided highway having three westbound lanes on the north side of the median and three eastbound lanes on the south side. The deceased drove east at or above the posted speed limit in the southern-most of the westbound lanes for three miles or more and ran several red lights according to the testimony. Several cars swerved to avoid the deceased and some blew their horns to warn him.

The declaration set up the insurance, collision, injuries and death, and lack of reason of deceased to embark on a course of action voluntarily and knowingly which would lead to serious injury to himself.

The defense affirmatively asserted that the collision, injuries and death were the direct result of the voluntary, intentional and grossly negligent acts of the decedent and hence not an accident within the meaning of the contract.

The case was submitted to a jury which returned a verdict of no cause for action and it is here on appeal on four allegations of error:

1. The trial court should have directed a verdict or given judgment notwithstanding the verdict.
2. The trial court should have allowed testimony setting forth decedent’s statements upon recovery of consciousness which statements were intended to show decedent had no desire to subject himself to danger.
3. The trial court should have advised counsel of the proposed action on requested instructions pursuant to GCR1963, 516.1.
4. The trial court should not have instructed the jury that if the decedent should have or could have foreseen the danger involved in his driving the plaintiff could not recover.

The appellee maintains that the appellant’s failuré to object to the court’s instructions as provided in GCR 1963, 516.2 precludes his assertion of error in regard thereto.

To dispose of the less complicated matters first, we say that the second allegation of error does not admit of our consideration because no separate record was made. The case of Bujalski v. Metzler Motor Sales Company (1958), 353 Mich 493, spells out the rule in this regard and the reasons therefor, and though it deals with the former Court Rule No 37, § 15 (1945), the provisions of this rule are now in GCR 1963, 604.

Turning to the matter of a directed verdict or judgment notwithstanding the verdict, we find no reversible error.

Whether or not the decedent’s injuries were effected through “accidental means” was properly a jury question. The answer placed in question the intent of the decedent and this could, with propriety, be decided only by the jury.

At the conclusion of testimony the court was correct in refusing the respective requests for direction of the verdict. The testimony supported the theories pleaded and from the testimony, under proper instruction, the jury could have found from the evidence that decedent’s injuries were effected by accidental means or that they were not so effected.

Appellant’s third and fourth assignments of error deal with the instructions. Although the appellant failed to comply with GCR 1963, 516.2, he is not precluded from making such assignments of error on appeal because the record does not show that the court complied with GCR 1963, 516.1 in affording the parties the opportunity to object.

In response to the defendant’s request the court instructed:

“If you find that the deceased, in driving against the flow of traffic on Eight Mile road, in the city of Warren, during the early morning hours for a distance of at least three miles had a head-on collision with a car which was traveling in the opposite direction at a normal, lawful speed, and if you find that any reasonable man should have foreseen the natural and probable result of such a course of action then you must find that the injuries were not caused by an accident and that plaintiff cannot recover under the policy.” (Emphasis added.)

This does not correctly state the law.

“Foreseeability”, and “natural and probable results” are not the only elements of accident—all of the external acts preceding the death must be considered. The determination must be made (by the jury) whether the external acts preceding the death in view of the circumstances of this particular case should be considered accidental. Ruona v. New York Life Insurance Company (W D Mich), 68 F Supp 923.

Several elements of accident and the relationship among them are considered in the case of Ashley v. Agricultural Life Insurance Company of America (1928), 241 Mich 441 (58 ALR 1208), wherein a judgment for a double indemnity under a contract similar to the contract in this case was ordered by the Supreme Court. This case involved a decedent who became lost while hunting and froze to death. The Court said at page 444:

“The authorities are not in harmony with respect to a distinction between accidental death and death by accidental means, but, conceding the distinction, we find no difficulty here under the rule above quoted. The authorities are quite in accord in holding that where one has fallen into water involuntarily and drowned, the death is through external, violent, and accidental means. Water is not an accident. But the fall which preceded the drowning, being unforeseen, unexpected, accidental, the water connected with the fortuitous mishap, the fall, became the accidental means, the instrument of death. So here, insured became lost accidentally, and thereby suffered accidental and enforced exposure to storm and frost and thereby died. The storm and frost were, in the season of the year and in this latitude, usual incidents of weather. They were not accidental. 1 CJ, Accident, § 3, p 391. But because of insured’s accidental exposure to them, the storm and frost so joined with the exposure became the accidental means of death. We see no difference in principle where one mistakenly and fortuitously loses his way and falls into water to his death, and where one mistakenly and fortuitously loses his way in the forest and thereby falls, a victim of the elements.”

Here if the deceased turned on the wrong side of Eight Mile road by accident or mistake, the rest of his driving and the collision would be “fortuitous” and “accidental” within the definition and usage of Ashley.

Applying the rule of Ashley to the case at hand, the jury should have been instructed to determine from the evidence whether the deceased drove as he did knowingly or by mistake because this would determine whether or not his death was by accidental means. The instruction complained of does not require the jury to determine the fact that controls this case.

Reversed and remanded for a new trial. Costs to appellant.

McG-begor and Quinn, JJ., concurred.  