Opinion
June 1, 1961
Appeal from an order of a Trial Term, Supreme Court, Albany County. A life insurance policy issued by defendant on the life of plaintiff's husband contained a double indemnity accidental death provision. This was in the usual form of such provisions. It provided the death of the insured must be shown to have "resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means * * * provided, however, that such Double Indemnity Benefit shall not be payable if the Insured's death resulted, directly or indirectly, from * * * (g) infirmity of mind or body; (h) illness or disease". On February 8, 1958 the insured was injured in an automobile accident. The direct physical consequences of this accident were black and blue areas on the right side of the chest extending to the mid-axillary portion of the chest. The area was "exquisitely tender" and caused considerable pain on motion. A mass in "a rather curious pattern" was discovered on X-ray examination and this was later demonstrated to be an aneurysm of the aorta. A month after the accident, on March 9, the insured was admitted to a hospital for the surgical correction of the aneurysm. He was operated on March 17 and the aneurysm apparently removed successfully, but on March 20 he died. The death certificate stated death was due to coronary thrombosis. A general physician who treated decedent for the chest injuries, and who referred him to the thoracic surgeons and who signed the death certificate, but who did not himself see the operation or attend the autopsy, was the only medical witness in the case. He testified that the accident of February 8 was "the competent producing cause of his death", i.e., "I'd say yes." The reason for this opinion was that the aneurysm was activated by the trauma that decedent sustained at the time of his injury. Although the death certificate signed by this witness stated that death was due to "coronary thrombosis" the physician testified on the trial that the "direct cause" of his death was the effect of the use of a mechanical suction device to remove mucous and secretions from the tracheal tree which caused "a severe laryngeal tracheal spasm resulting in anoxia and death". If this record is viewed, as it must be, in the most favorable aspect to plaintiff's case, because of the directed verdict for defendant and the dismissal of the complaint when both sides had rested, we find the medical connection between the exterior injuries to the chest and to ultimate death depend on a long chain of cause and effect not sufficiently established to bring the case within the accidental double indemnity provisions of the policy. It is clear that there is no proof that the accident caused the aneurysm of the aorta; nor did it cause the aneurysm to rupture, although this is the usual risk in an aneurysm. What is established is a medical opinion that due to the accident the aneurysm was "activated"; but the only basis for this seems to be that it had not been observed in previous X rays, but was observed in X rays after the accident. The record suggests that the operation itself was successful, i.e., the aneurysm was removed, but that the insured died either from coronary thrombosis, apparently in part related to the operation; or from post-operative procedures. This record does not fairly meet the terms of the insurance contract that death be shown to have resulted "directly and independently of all other causes from bodily injury effected solely through * * * accidental means"; nor does it exclude the provision that there would not be coverage if death resulted "directly or indirectly from illness or disease". No case in New York has approved recovery under such a policy provision on a medical record so tenuous and uncertain as this one (cf. McGrail v. Equitable Life Assur. Soc., 292 N.Y. 419; Silverstein v. Metropolitan Life Ins. Co., 254 N.Y. 81; Berkowitz v. New York Life Ins. Co., 256 App. Div. 324; Lareau v. Order of United Commercial Travelers of America, 5 A.D.2d 734). The case is governed, rather, by McMartin v. Fidelity Cas. Co., 264 N.Y. 220). Order and judgment affirmed, without costs. Bergan, P.J., Gibson, Herlihy and Taylor, JJ., concur.