5 N.Y.S. 215 | N.Y. Sup. Ct. | 1889
The questions chiefly litigated on the trial, and the only questions presented for our consideration on the argument of this appeal, were: {1) Whether the decedent’s injury was the proximate and sole cause of his death. (2) Whether the fact that the decedent’s death or injury was caused by external violence and accidental means was established by direct and positive proof, within the intent and meaning of the policy. (3) Whether the •decedent made false statements as to his age. (4) Whether this action could be maintained in its present form. We are of the opinion that the evidence was sufficient to justify the trial court in finding that the fracture of decedent’s arm alone caused his death, and that it was the sole and proximate cause thereof. McCarthy v. Insurance Co., 8 Biss. 362; Barry v. Association, 23 Fed. Rep. 712; Association v. Grauman, 107 Ind. 288, 7 N. E. Rep. 233.
It must be admitted that there was no evidence by any witness who saw the decedent when he was injured as to the particular manner in which his injury was caused. But the requirement of this certificate as to direct and positive proof did not make it necessary that the plaintiff should establish the fact and attendant circumstances of the decedent’s injury by persons who were actually present when the injury occurred. The fact that the injury was caused by external violence was directly and positively established by the proof given of the nature and character of his injury. We think the presumption, if any, was that his injury was caused by accidental means, rather than that it was the result of design, either on the part of the decedent or of any other person. It was not to be presumed that his injury was self-inflicted, nor that it was intentionally inflicted by any other person. The evidence was sufficient to justify the trial court in finding that the injury sustained was caused by accidental means. But the more difficult question is whether it was established by such direct and positive proof as the certificate required. While this question is not free from doubt, still, we are inclined to the opinion that the proof was sufficiently direct and positive to answer the requirements of the certificate. Insurance Co. v. McConkey, 127 U. S. 661, 666, 8 Sup. Ct. Rep. 1360; Mallory v. Insurance Co., 47 N. Y. 52.
There was not sufficient evidence that the decedent made any false statement as to his age to defeat the recovery in this action, and the court properly so held. That the plaintiff could maintain this action in its present form seems to be established by the cases of Freeman v. Society, 42 Hun, 252; Fulmer v. Association, 12 N. Y. St. Rep. 346; Hankinson v. Page, 12 Civil Proc. R. 279, 288; O'Brien v. Society, 4 N. Y. Supp. 275. These considerations have led us to the conclusion that the judgment appealed from should be affirmed.
Judgment affirmed, with costs. All concur.