Opinion
November 10, 1943.
Present — Crosby, P.J., Cunningham, Dowling, Harris and McCurn, JJ.
Judgment and order affirmed, with costs.
The plaintiff established by uncontradicted evidence that the death of the insured was accidental within the fair meaning of the policy and her right to recover thereunder as a matter of law. ( Clancy v. John Hancock Mut. Life Ins. Co., 156 Misc. 732; Goldfeder v. Metropolitan Life Ins. Co., 155 Misc. 744; Gallagher v. Fidelity and Casualty Co., 163 App. Div. 556, affd. 221 N.Y. 664; Frank v. Metropolitan Life Ins. Co., New York Law Journal, May 23, 1934, affd. 243 App. Div. 693 [quoted in Goldfeder case, supra], 14 R.C.L., Insurance, § 437; Mansbacher v. Prudential Ins. Co., 273 N.Y. 140.) Under the facts, the court erred in admitting evidence as to the private life of the insured. The insured's criminal record was in no way connected with the fatal blow. ( People v. Rodawald, 177 N.Y. 408. ) Lizak was not justified in striking the insured as he did under the circumstances. ( People v. Constantino, 153 N.Y. 24. ) The court erred in charging the jury, at the request of the defendant, in substance, that it did not necessarily depend on what the insured should have anticipated would happen to him but on what the average man should have anticipated would happen to himself under the circumstances and facts. This charge permitted the jury to speculate as to what the average man should have anticipated and not what the insured actually anticipated at the time. The jury may well have found that the insured did not actually anticipate or invite the dire result which happened but that the average man should have anticipated it. While the plaintiff failed to protect herself by appropriate objections and exceptions, nevertheless, in the interests of justice, this court has the power to grant a new trial. ( Storms v. City of Fulton, 263 App. Div. 927.) In our judgment, there is no evidence to support the verdict of no cause for action in this case. (The judgment is for defendant for no cause of action in an action under an accidental death rider on a life insurance policy. The order denies a motion for a new trial.)