148 N.Y.S. 1016 | N.Y. App. Div. | 1914
On February 1, .1910, defendant issued and delivered to plaintiff its policy of accident insurance. By the payment of annual premiums subsequently accruing the policy was in full force on July 11, 1911. Upon that date, which was an exceedingly hot day, after being exposed to the sun’s rays in the necessary conduct of his business, for an unusual number of hours, plaintiff suffered a physical experience which the jury have found, upon sufficient evidence, was. a “ sunstroke.” The policy in question insured the person named therein “Against bodily injury * "x" * through accidental means (excluding suicide, sane or insane, or any attempt thereat, sane or insane), and resulting directly, independently and exclusively of all other causes ” in total disability, partial disability or death. Among the “ general provisions ” of the policy is one to the effect that the term “bodily injury ” is defined in the insuring clause, and as so defined shall be understood wherever used in the policy. Turning to the insuring clause we find, among others, “ Article 6. Any one of the following, namely — sunstroke, freezing, hydrophobia, asphyxiation — suffered through accidental means (excluding suicide, sane or insane, or any attempt thereat, sane or insane), shall be deemed a bodily injury within the meaning of this policy.” Appellant contends that the sunstroke experienced by plaintiff was not suffered “ through accidental means; ” that an injury occurring as the direct result of intentional acts is not thus produced, and that as plaintiff had intended to -do all of the things which he did upon the day in question prior to the occasion thereof, this sunstroke, although as a result it may have been wholly unexpected, followed intentional rather than accidental means. To quote from his brief, the phrase in question “ means that the policy being an accident policy, the defendant will pay indemnity for death or disability by sunstroke only when the means or causes leading
In the policy now under consideration, however, in its defining clause, sunstroke is included within the definition of “bodily injury,” and because this is an accident as distinguished from a life policy, it might be urged with considerable force that every sunstroke is within the meaning of the policy an accidental bodily injury. While it may be conceded that sunstroke, freezing and hydrophobia are diseases rather than accidents, the popular idea is not so, and as a concession to this view, to save all question as to liability therefor, these, together with asphyxiation, are specifically named as conditions as to which the policy holds good. (Herdic v. Maryland
We think, therefore, that upon the evidence in this case the learned trial court would have been justified in leaving to the jury as the only question of fact in the case the question whether plaintiff did suffer a sunstroke. The fact that it was
The judgment and order should be affirmed, with costs.
Jenks, P. J., Rich, Stapleton and Putnam, JJ., concurred.
Judgment and order affirmed, with costs.