Opinion
June 20, 1949.
Present — Nolan, P.J., Carswell, Sneed, Wenzel and MacCrate, JJ. [See post, p. 1002.]
In an action to recover double indemnity benefit for the death of an insured, resulting solely from bodily injuries allegedly caused by external, violent and accidental means, the complaint was dismissed after the opening address to the jury by plaintiff's counsel. Judgment unanimously affirmed, with costs. The insured was the owner and manager of a garage. He employed a day man and a night man to do the manual work incidental to the operation of a garage and ordinarily did no such work. Because of the twenty-eight-inch snowfall on December 26, 1947, he unusually exerted himself extricating cars from the snow, helping owners and operators of motor vehicles, and in working around the garage. These unusual overexertions continued from December 26, 1947, to January 3, 1948, resulting in damage to his heart and, finally, his death. Proof of all that was stated in the opening to be the facts would not have made a prima facie case of liability under the policy ( Wilcox v. Mutual Life Ins. Co., 265 N.Y. 665).