Opinion
July 9, 1915.
William J. Moran, for the appellant.
Frederick Hulse of counsel [ Eidlitz Hulse, attorneys] for the respondent.
The defendant is an insurance company organized under the laws of the State of Connecticut and duly authorized to do business in this State. It issued a combined accident and health policy to Andreas A. Sasse. This action is brought by the widow of the insured, the beneficiary under said policy, to recover the amount provided therein payable upon the accidental death of the insured. The facts are in many respects similar to those presented in Sasse v. Order of United Commercial Travelers of America ( 168 App. Div. 746), the opinion wherein was handed down herewith.
In the case at bar the contract is evidenced by the policy which provides that the company insured Andreas A. Sasse "against bodily injuries effected directly and independently of all other causes through external, violent and accidental means." It provided that "the principal sum of this policy in the first year is $5,000," and "increases annually until maximum is $7,500."
The policy further provided: "Part A. Single Indemnity — Death, Dismemberment and loss of Sight. If any one of the disabilities enumerated below shall result from such injuries alone, within ninety days from the date of accident, the company will pay the sum specified opposite such disability * * *. For Loss of Life * * * — The principal sum."
The answer alleges that the death of the insured was not effected through, nor did it result from any bodily injuries, effected directly and independently of all other causes, through external, violent and accidental means, but on the contrary alleges that the death of said Sasse on or about the 21st day of August, 1912, and the alleged bodily injuries, if any, suffered by him on or about August 10, 1912, were effected and caused directly or indirectly, wholly or in part by disease and were not caused by or through any external, violent and accidental means and that the alleged bodily injuries and the death of said Andreas A. Sasse were effected by and resulted from disease to which said Sasse was then subject.
In this case no questions of pleading, of due notice, of waiver, or of forfeiture arise. The issue tried was whether upon the facts the defendant was liable under this policy. Careful consideration of the testimony which, while differing in some details, is substantially similar to that received in the case against the Order of United Commercial Travelers, has satisfied us that the verdict is not supported by the credible evidence and is against the weight thereof.
The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
INGRAHAM, P.J., SCOTT, DOWLING and HOTCHKISS, JJ., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.