Opinion
February 25, 1971
Appeal from a judgment of the Supreme Court, Ulster County at a Trial Term, entered December 3, 1969, which dismissed the complaint at the close of plaintiff's case. The defendant issued two policies of insurance on the life of one Nathan Breslow. Plaintiff widow is the sole beneficiary. Each policy contained "an additional indemnity benefits" provision. On December 22, 1965 the decedent, a pharmacist, was in his store when a crowd of teenage boys came in and became unruly, threatening and boisterous. They blocked the front entrance to the store. The decedent walked into the crowd, yelled at them and started to propel them through the door when they finally left. There was no physical contact between the boys and decedent. Shortly after they left, the plaintiff, a nurse, noticed her husband was pale, trembling and perspiring profusely. He was seen by a doctor and ultimately taken to the hospital where he died the following day of myocardial infarction. The sole issue for our determination is whether the heart attack under the circumstances described constituted death as a "direct result of bodily injury * * * caused by external, violent and purely accidental means", which was "evidenced by a visible contusion or wound on the exterior of the body" within the contemplation of the policies. In order to recover plaintiff has the burden of proving compliance with all of the provisions of the policies. ( Whitlatch v. Fidelity Cas. Co., 149 N.Y. 45.) This, in our opinion, she has failed to do. The language of the policies is clear and unambiguous. It must be given such meaning as the average policyholder and insurer would attach to it. ( Johnson v. Travelers Ins. Co., 269 N.Y. 401, 407-408.) Paleness, trembling and profuse perspiration do not constitute proof of "a visible contusion or wound on the exterior of the body". To hold otherwise would be assigning a strained and unreasonable interpretation to their well-known commonly understood meaning. ( Dupee v. Travelers Ins. Co., 253 App. Div. 278, affd. 278 N.Y. 659.) Consequently, we conclude that the decedent's death did not come within the terms of the additional indemnity provision, nor the intent of the parties. Judgment affirmed, without costs. Herlihy, P.J., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.