Bracey v. Metropolitan Life Ins. Co.

• Decision Date: 19 July 1967
• Citation: 54 Misc.2d 175,282 N.Y.S.2d 121
• Parties: Julia B. BRACEY, Plaintiff-Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Term

Page 121

282 N.Y.S.2d 121

54 Misc.2d 175

Julia B. BRACEY, Plaintiff-Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, Defendant-Respondent.

Supreme Court, Appellate Term, Second Department.

July 19, 1967.

Pokorny, Schrenzel & Pokorny, Brooklyn, for appellant, by Sheridan Albert, Brooklyn, of counsel.

Friend, Kinnan, Post & Friend, New York City, for respondent, by David R. Crow, New York City, of counsel.

Before DiGIOVANNA, RITCHIE and SHAPIRO, JJ.

OPINION

J. IRWIN SHAPIRO, Justice.

Plaintiff appeals from a judgment in favor of defendant rendered after trial without a jury in an action to recover under a double indemnity provision of a policy issued by defendant upon the life of plaintiff's husband which provided that the sum of $5,000 would be payable if the death of the insured 'resulted, directly and independently of all other causes, from bodily injuries caused solely by external, violent and accidental means,' provided, however, that 'such benefit shall not be payable if death (1) is caused or contributed to by disease or bodily or mental infirmity or medical or surgical treatment therefor.'

Plaintiff was named beneficiary. On March 25, 1959, at a hospital, a tonsillectomy was performed upon the husband by a doctor who had performed hundreds of such operations. During the operation a suction machine was used to aspirate any blood which might have been in the area of the operation, but the machine aspirated only phlegm and mucus. Upon completion of the operation, the husband was taken 'downstairs'. When he was taken out of the operating room, the bleeding, which is normal in a tonsillectomy, was controlled by ligating the blood vessels, and there was no blood in his mouth. Found to be bleeding from 'a fauces where a tonsil had been removed', he was quickly returned to the operating room because 'they couldn't stop the bleeding which * * * had started.' By that time the patient had expired. Upon autopsy it was found that death was due to asphyxia by aspiration of blood. The doctor who performed the operation testified that there normally is bleeding in a tonsillectomy.

Judgment was properly rendered for defendant for two reasons: Firstly, the operative facts here fail to establish that death resulted Solely from external and accidental means within the plain meaning of the double indemnity clause of the policy and, secondly, the death here was excluded from coverage because it was due to medical or surgical treatment.

Though death does not ordinarily result from surgical procedures where tissues of the body, particularly blood vessels which have to be ligated to control bleeding, are invaded, this nevertheless is a possible eventuality. As was said in Rosenthal v. Mutual Life Insurance (3 Misc.2d 181, 183, 155 N.Y.S.2d 478, 480, affd. 8 N.Y.2d 1075, 207 N.Y.S.2d 450, 170 N.E.2d 455): 'Admittedly, in all operations, even those of a minor nature, there are certain operative risks.' Accordingly, if death occurs as a result of surgery And not by reason of the intervention of some outside agency, the result, in the eyes of the law, is not 'accidental'.

The term 'accident', as used in double indemnity clauses of life insurance policies or in similar insurance policies, has been defined as 'something unforeseen, unexpected, extraordinary, and unlooked-for mishap * * *' (Lewis v. Ocean Accident and Guarantee Corp., 224 N.Y. 18, 21, 120 N.E. 56, 57, 7 A.L.R. 1129; also see, e.g., Borneman v. John Hancock Mutual Life Insurance Co., 289 N.Y. 295, 299, 45 N.E.2d 452, 454). In Burr v. Commercial Travelers Mutual Accident Association (295 N.Y. 294, 301, 67 N.E.2d 248, 251, 166 A.L.R. 462), the following definition of 'accident' was given:

'Legal scholars have spent much effort in attempts to evolve a sound theory of causation and to explain the nature of an 'accident'. Philosophers and lexicographers have attempted definition with results which have been productive of immediate criticism. No doubt the average man would find himself at a loss if asked to formulate a written definition of the word. Certainly he would say that the term applied only to an unusual and extraordinary happening that it must be the result of chance; that the cause must be unanticipated or, if known, the result must be unexpected.'

A review of the facts in some of the New York cases would seem to be more helpful in obtaining an insight into the meaning of the term 'accident or accidental death' than a discussion in the abstract.

In Lewis v. Ocean Accident and Guarantee Corp. (supra), where death was due to a virulent and lethal infection introduced into the body by puncturing a pimple on the lip with an instrument, it was held that death was accidental because 'the dire result, so tragically out of proportion to its trivial cause, was something unforeseen, unexpected, extraordinary, an unlooked-for mishap, and so an accident' (224 N.Y. p. 21, 120 N.E. p. 57). In Mansbacher v. Prudential Insurance Co. (273 N.Y. 140, 7 N.E.2d 18, 111 A.L.R. 618), where death occurred when the deceased took an excessive amount of veronal which had been prescribed for him for sleeplessness, it was held that the resulting death was accidental since the unintended taking of an excessive amount was a 'mischance'. In Burr v. Commercial Travelers Mutual Accident Association (295 N.Y. 294, 67 N.E.2d 248, supra), it was held that death was accidental when in a raging snowstorm the deceased, attempting to shovel the snow away so that he could get his car out of a ditch, slipped and fell against the car and died a moment later. In that case it was held that the trial judge correctly charged the jury when he said (pp. 300--301, 67 N.E.2d p. 251):

"Accidental means are those which produce effects which are not their natural and probable consequences. Consequently, if you find from the evidence that Mr. Burr met his death as the result of some unexpected and unforeseen consequences of his efforts to extricate his car from the snow bank on the day in question, you may find that it was the result of external, violent and accidental means."

In Adlerblum v. Metropolitan Life Insurance Company (259 App.Div. 859, 19 N.Y.S.2d 600, affd. 284 N.Y. 695, 30 N.E.2d 728), it was held that death was accidental where it was due to an unknown hypersensitivity to novocaine which had been injected into the deceased in preparation for the removal of his tonsils. Similarly in Berkowitz v. New York Life Insurance Company (256 App.Div. 324, 10 N.Y.S.2d 106), it was held that the death of the deceased was accidental where it was due to a hypersusceptibility to neosalvarsan with which the deceased had been injected as a treatment for syphilis. And in the same vein, in Escoe v. Metropolitan Life Insurance Company (178 Misc. 698, 699, 35 N.Y.S.2d 833) a recovery of double indemnity for accidental death was permitted where death resulted because of an allergy to a durg known as sulfapyridine, which had been injected to treat pneumonia.

In contradistinction, there are the following cases: In Borneman v. John Hancock Mutual Life Insurance Company (289 N.Y. 295, 45 N.E.2d 452, supra), death resulted from a fractured skull which the deceased sustained when his head hit the pavement upon being punched by a former prize fighter with whom he had a quarrel outside a tavern. In denying a recovery, the Court said (p. 299, 45 N.E.2d p. 454) that 'the fall of the insured, with the concomitant injuries from contact with the pavement, cannot be said to be unforeseen, unexpected or extraordinary' and that consequently the death was...