Opinion
December 19, 1961
Judgment affirmed on reasoning of Special Term, with costs to respondent. No opinion.
I dissent on the ground that whether the compound that was processed by the plaintiff was a pharmaceutical, and so within the policy, was a question of fact and should have been submitted to the jury. There was very substantial evidence that, although all of the ingredients were also used at times as ingredients of pharmaceuticals, the resulting compound was not in that classification, and that plaintiff actually knew that the compound was as dangerous to mill as it in fact proved to be. The increase in risk was not technical but actual, and the chance taken was deliberate. Whether the hazard was increased may be open to question, but to say that reasonable minds could not differ on the question is to say that quite a few minds are not reasonable.