Opinion
Argued February 27, 1951
Decided May 24, 1951
Appeal from the Supreme Court, Appellate Division, First Department, ROHAN, J.
Jacob Freed Adelman for appellant. Dennis L. O'Connor, George A. Garvey and James I. McGuire for respondent.
The plaintiff's wife, Evelyn French Morgan, died under circumstances claimed to be covered by a standard accident insurance policy issued on her life by the defendant insurance company. A judgment entered on a jury verdict in favor of plaintiff as named beneficiary has been set aside and the complaint dismissed for alleged failure to establish compliance with the policy condition rendering the company liable against loss "resulting directly and independently of all other causes from bodily injuries sustained * * * and effected solely through accidental means".
The proof deemed insufficient, established without contradiction that on December 7, 1946, the insured, age thirty-four, with her husband and several mutual friends, spent the evening in a round of social activities at which alcoholic beverages were consumed. The insured and her husband returned on foot to their apartment about 1:30 A.M. Before retiring for the night the insured took some sleeping pills "because her foot hurt and she wanted to be sure to sleep". When her husband was unable to arouse her between 4:30 and 5:00 A.M., aid was summoned and she was pronounced dead by the ambulance physician. An autopsy performed at the city mortuary within a few hours by qualified physicians revealed a normal physique for a woman of her age, with general visceral congestion. Chemical analysis of the vital organs by a qualified toxicologist showed the presence of alcohol 0.15% indicating acute alcoholism, but whether enough by itself to have caused death was doubtful as there was medical testimony that a lethal quantity under 0.6% depends on individual tolerance in a given case. It also showed the presence of amytal (a barbiturate acid derivative) 4.5 mgs., an amount equal to a triple lethal dose and sufficient in itself, independent of the presence of other items, to cause death. The deputy chief medical examiner noted in his report that death was due to "Barbiturate (Amytal) Poisoning. circumstances undetermined. contributory Acute Alcoholism."
Because elements exist, either one of which alone could have been the cause "of death", a sharp question is raised as to whether recovery under the policy may be defeated because the policy condition uses the phrase "directly and independently * * * effected solely through accidental means". We think not. Whether death results from accidental causes or accidental means no longer makes any distinguishing difference ( Burr v. Commercial Travelers Mut. Accident Assn., 295 N.Y. 294). Ordinarily, death solely from overindulgence of alcoholic beverages is not considered accidental ( Powley v. Equitable Life Assur. Soc., 257 App. Div. 324, affd. 284 N.Y. 664). On the other hand, death caused solely by barbiturate poisoning may be so considered ( Mansbacher v. Prudential Ins. Co., 273 N.Y. 140 [veronal]; Meyer v. New York Life Ins. Co., 249 App. Div. 243, appeal discontinued 276 N.Y. 557 [sodium ortal]). Whether under the circumstances of this case death resulted directly and independently from barbiturate (amytal) poisoning was a question for the jury, particularly where there is competent medical testimony that the amytal by itself was sufficient to cause death independent of other elements present.
The judgments should be reversed and a new trial granted, with costs to abide the event.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, FULD and FROESSEL, JJ., concur.
Judgments reversed, etc. [See 302 N.Y. 940.]