155 Misc. 744 | City of New York Municipal Court | 1935
This action is brought to recover the sum of $2,000, representing double indemnity benefits under a policy of fife
At the trial of this action it was proved that on June 10, 1933, the assured died as a result of gunshot wounds and a fracture of the skull not self-inflicted, and that due proof of loss was given by the plaintiff to the defendant. While there are no cases in this jurisdiction with reference to the proof of accidental death where violent and external means are shown, except in those cases involving suicide, the law in the Federal jurisdiction and in the jurisdiction of most of the States of the United States is that where death by violent, external means is established, prima facie proof is thereby made of the fact that the injuries are accidental without direct or positive proof on this point, as the law will not presume that the injuries are intentionally self-inflicted. (Stanton v. Travelers Ins. Co., 83 Conn. 708; 78 A. 317; Wilkinson v. Ætna Life Ins. Co., 240 Ill. 205 ; 88 N. E. 550; Allen v. Travelers Prot. Assn., 163 Iowa, 217; 143 N. W. 574; Roeh v. Business Men’s Prot. Assn., 164 Iowa, 199; 145 N. W. 479; Bohaker v. Travelers Ins. Co., 215 Mass. 32; 102 N. E. 342; Ætna Life Ins. Co. v. Milward, 118 Ky. 716; 82 S. W. 364; Smith v. Travelers Ins. Co., 219 Mass. 147; 106 N. E. 607; Hornby v. State L. Ins. Co., 106 Neb. 575; 184 N. W. 84; Cronkhite v. Travelers Ins. Co., 75 Wis. 116; 43 N. W. 731;. Jones v. U. S. Mut. Acc. Assn. of the City of N. Y., 92 Iowa, 652; 61 N. W. 485.) Death by the intentional discharge of a firearm at the insured by an unknown person is accidental. (See Button v. American Mutual Acc. Assn., 92 Wis. 83; 65 N. W. 861.) Furthermore, it has been held that an intentional homicide is an accident within the meaning of an accident policy. (Furbush v. Maryland Cas. Co., 131 Mich. 234; 91 N. W. 135; Robinson v. Mutual Acc. Assn., 68 Fed. 825; Interstate Business Men’s, etc., v. Lester, 257 id. 225.)
The testimony adduced and all the circumstances point conclusively to the fact that the insured was “ taken for a ride ” and shot and killed. The body of the insured was found exactly in the center of the intersection of Oakland terrace and Compton terrace, in the township of Hillside, N. J., which is between Newark and Elizabeth, on June 10, 1933, at one-forty-five p. m. The insured was still alive, although there were several bullet wounds in his head when the police arrived. The police searched the body
The defendant contended that the insured was engaged in some other business; that something in the nature of a “ racket ” was conducted in the office in Newark, and that fact is indicated because the insured employed an alias, and, if a legitimate business had been conducted there, somebody would have appeared at the office after the death of the insured to take care of or wind up the business. It is also contended by the defendant that the plaintiff is not entitled to recover and that the so-called “ aggressor ” rule which has been stated in numerous cases involving actions for double indemnity, should be extended to a situation such as has been established in this case. Defendant contends that the insured was a gangster and had apparently been engaged in some unlawful activities, and was in the habit of going around armed and, in the vernacular of the day, was “ taken for a ride ”
The facts in the cases cited are not analogous to the case at at bar. In the cases cited, some act of aggression or some unlawful or criminal act of the insured brought upon him an assault, which resulted in death, and in all those cases it was held that death under such circumstances was not effected by accidental means as that term was employed in the policies or certificates of insurance involved. Moreover, the factual distinction between the cases cited and the case at bar is that in the former, the assault provoked by the insured followed almost immediately or within a comparatively short time after the acts of provocation.
In the case of Frank v. Metropolitan Life Ins. Co. (N. Y. L. J. May 23, 1934; affd., 243 App. Div. 693) it appeared that the insured had a long criminal record, had been arrested a number of times, had jumped his bail and was a fugitive from justice, was wanted by the police for murder and was engaged in the beer racket with one Waxey Gordon, who was later convicted of income tax frauds in connection with said racket. A motion for summary judgment was granted in an action brought to recover for double indemnity under a policy of insurance. The court in that case said: “ The insured met his death while seated in a restaurant in Los Angeles, Cal. Three men entered, walked directly to the table at which the insured and another man were seated and immediately opened fire and killed both. This is sufficient to establish ‘ external violent
I am of the opinion in the case at bar that the defendant has failed to establish that the insured committed some act of aggression, unlawful or criminal act, which brought upon him an assault which resulted in his death and the plaintiff is entitled to recover.
Verdict directed in favor of the plaintiff for $2,000. Ten days’ stay and sixty days to make a case.