210 A.D. 177 | N.Y. App. Div. | 1924
Gustav E. Lindblom, on whose life on August 17, 1922, defendant wrote a policy of insurance for $10,000, died November 14, 1922, from carbolic acid poisoning. He administered to himself the draught which caused his death. The policy contained a provision that the defendant would pay double the amount of the policy, namely, $20,000, in case death was accidental. Another clause in the policy is as follows, “ If the Insured within one year from the issue hereof die by his own hand or act, whether sane or insane, this Policy shall become null and void and the Company will return only the premiums which have been received thereunder.” The issue of suicide or accident was left to the jury which found in favor of the plaintiff who was the beneficiary named in the policy.
We deem this verdict which held that the taking of the poison was accidental and not with suicidal intent, contrary to the weight of evidence.
It is the plaintiff’s claim that the acid was taken by mistake instead of plain water, a solution of carbolic acid having been given to the insured by a physician for external use about two weeks previously. It would serve no useful purpose to set out the evidence in detail here. Suffice it to note the following facts. Carbolic acid is a substance which carries with it in its odor a vivid warning of its danger. The solution taken was quite certainly not the doctor’s prescribed ten per cent solution in glycerine, but derived from a bottle of almost pure acid which the insured had caused to be purchased for him at a drug store while he was still supplied with the milder ten per cent solution left by his physician. After taking the solution no attempt to get help or cry for help is recorded, but, on the other hand, the insured laid himself down upon his bed and covered himself with the bed clothes where he was found in an unconscious state when his wife, a short time after-wards, entered the room. Added to this is the insured’s financial embarrassment, the near due day of the next quarterly premium, the taking out of this large policy of insurance while financially involved, and the strange episode about six weeks before his death of the insured driving his motor car twenty-five feet off the road into the Mohawk river and his conduct in apparently spuming help when held out to him by rescuers and his seemingly false statements as to the cause of his getting into the river. The evidence as a whole points to suicide with such certainty that in the interests of justice we feel that a new trial should be had.
We find no error in the rulings of the learned trial court in respect to the proof of death furnished the defendant. The receipt
At the time of the death of the insured there was another policy outstanding on his life issued by the defendant. The proof of death submitted made special reference to such other policy but mentioned the policy which is the basis of this action in the answer to a question as to other insurance outstanding. Under’ such circumstances it was not necessary that a separate proof of death should be filed with special reference to the policy in suit. (Girard Life Ins. Co. v. Mutual Life Ins. Co., 97 Penn. St. 15; Dakin v. Liverpool & Lond. & Globe Ins. Co., 13 Hun, 122; affd., 77 N. Y. 600; Clement Fire Ins. as a Valid Contract, 213.)
The plaintiff’s affidavit, included in the proof of death, stated that such death was accidental and the physician's statement, also included, set forth the cause of death as carbolic acid poisoning. We deem these statements sufficient to meet the requirement of the policy of “ due proof of the death of the insured as the result of bodily injury effected solely * * * through external, violent and accidental means.”
The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concur; Hitbbs, P. J., not sitting.
Judgment reversed on the facts and new trial granted, with costs to appellant to abide event.