Opinion
September 30, 1935.
Joseph Miller, for the plaintiff.
Louis H. Cooks, for the defendant.
The defendant issued its policy insuring the life of plaintiff's wife, plaintiff being named as beneficiary, and agreed to pay as "double indemnity" $1,000 if "the death of the insured * * * resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause."
The insured administered an enema to herself which caused a traumatic rupture of the intestine and waste matter seeped through causing an inflammation of the peritoneum. Death resulted from "Rupture of sigmoid colon; Peritonitis."
Defendant resists payment claiming that death was not caused by "accident" within the meaning of the policy.
The terms of the policy "are to be understood in their plain, ordinary and popular sense. ( Imperial Fire Ins. Co. v. Coos County, 151 U.S. 452; Drilling v. New York Life Ins. Co., 234 N.Y. 234.)" ( Auerbach v. Maryland Cas. Co., 236 N.Y. 247, 252.) "The tests to be applied are those of common understanding as revealed in common speech. * * * We little doubt that common understanding would envisage this mishap as an accident, and that common speech would so describe it." ( Matter of Connelly, 240 N.Y. 83, 85.)
In Lewis v. Ocean Accident Guarantee Corp. ( 224 N.Y. 18) the policy insured against injuries received through "accidental means." There insured had a pimple on his lip which he punctured. It became infected and despite the efforts of a physician, the infection spread, the insured became paralyzed and blind and shortly thereafter died. It was held that the defendant was liable under the policy; that the death occurred "from bodily injuries effected solely through accidental means." As in that case "unexpected consequences have resulted from an act which seemed trivial and innocent in the doing" (p. 20), viz., the puncture of the pimple, so in the case at bar the innocent act of taking an enema resulted in the unexpected consequence of a rupture of the intestine. Similarly in Schwartz v. Coml. Trav. M.A. of A. ( 132 Misc. 200; affd., 227 A.D. 711; affd., 254 N.Y. 523) it was held that a hemorrhage caused by plaintiff picking at an irritation in his nose, was covered by a policy limiting liabilities to "accidental" injuries.
The case of Gould v. Travelers Ins. Co. ( 244 A.D. 274) is not in point. There, there was no proof of trauma.
Judgment for plaintiff. Ten days' stay.