Burr v. Commercial Travelers Mut. Acc. Ass'n of America

• Decision Date: 18 April 1946
• Parties: BURR v. COMMERCIAL TRAVELERS MUT. ACC. ASS'N OF AMERICA.
• Court: New York Court of Appeals Court of Appeals

295 N.Y. 294

67 N.E.2d 248

BURR

v.COMMERCIAL TRAVELERS MUT. ACC. ASS'N OF AMERICA.

Court of Appeals of New York.

April 18, 1946.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Josephine M. Burr against the Commercial Travelers Mutual Accident Association of America on a policy which insured plaintiff's husband against loss by accidental means, of life, limb, sight and time. From a judgment in favor of the plaintiff entered in Otsego County on a verdict rendered at a trial at a Trial and Special Term, Deyo, J., the defendant appealed to the Appellate Division of the Supreme Court in the third judicial department. From a judgment of the Appellate Division, 269 App.Div. 478, 56 N.Y.S.2d 908, entered July 19, 1945, affirming by a divided court the judgment for plaintiff, the defendant appeals.

Judgment affirmed.

Moses G. Hubbard, Jr., of Utica, for appellant.

C. G. Tennant and Robert C. Tennant, both of Cooperstown, for Metropolitan Life Insurance Company, amicus curiae, in support of appellant's position.

Joseph P. Leary and O. L. Van Horne, both of Cooperstown, for respondent.

CONWAY, Judge.

This is an action upon a policy which insured the decedent, Raymond L. Burr, ‘against loss by accidental means, of life, limb, sight and time’. It insured against losses which were the direct and proximate result of and which were caused solely and exclusively by external, violent and accidental means. The decedent became a member of the association on September 9, 1931, and the insurance contract continued until his death on March 6, 1943. On that day, and for some five years prior thereto, the decedent was employed in the United States Bureau of Internal Revenue at Syracuse, N. Y. His duties required him to cover Otsego County. This he did by automobile. His health appeared to be excellent. At the time of his death he had six weeks sick leave due him which he had never taken. In 1942 he had been placed under civil service following a medical examination, and in 1940 he had been examined for life insurance by one of the large New York State companies and had obtained a policy of insurance after a medical examination by a doctor other than the one who had examined him in 1942. He had had one day's illness on the 23d or 24th of February prior to his death. He had never complained of any other sickness or illness.

At about eight o'clock on the morning of March 6th the deceased drove to Oneonta, a distance of fifteen miles, to the revenue office there, so as to arrange for someone to take his place while he went north to Malone for a day or two. He then drove back to Cooperstown, where he lived, and then left with his wife and thirteen-year-old son for Utica so as to take a train for Malone. It was then about 11:30 in the morning. When he left Cooperstown it was snowing lightly. By the time he reached South Columbia, the weather was very bad. By that time travel was possible only upon one half of the roadway. As Mrs. Burr described it: ‘It was just a one-way drive, the roadway over to Mohawk. We met the snowplow in South Columbia and it wasn't able to go back and open the road. It was just one-way traffic.’ It was then snowing heavily, it was bitter cold, visibility was poor, and the velocity of the wind was very high. The snow was piled on both sides of the road. After leaving South Columbia on the half of the road which was open, the Burrs met another car coming in the opposite direction at the top of a knoll. It could not be seen until it was upon them, and the deceased drew out a little to let it go by. The other automobile struck his go by. The other automobile struck his rear left fender and threw his car into the ditch. The other driver went on, and the deceased attempted to rock his automobile back and forth to see if he could get it out either backwards or forwards. That was impossible. He sat there and waited for someone to drive by who might help him. One car went by without stopping. The deceased finally decided that he would have to go on to some farmhouse to get a shovel. He was gone for some time and then he came back carrying the shovel and walking into the wind, which was so strong that he seemed to be staggering against it. When he entered the car he said that the wind had knocked him out. He sat in the car for fifteen or twenty minutes, again waiting to see if some car would come along so that heop might be obtained. By that time the snow was seeping in the windows of the car and in the door Mrs. Burr testified: ‘There was almost as much in the car as there was outside.’ When no one came, the deceased determined that it was necessary for him to get out and attempt to shovel the snow away despite the velocity of the wind. Mrs. Burr put her son's wool scarf over his ears and then pulled his hat down, and he went out and began to use the shovel. The boy got out, too, and finally she opened the door of the car and saw the deceased hit himself or slip and fall against the shovel and then against the rear wheel or rear fender of the car. Mrs. Burr jumped out and the deceased came around to the left side of the car and she helped him in. He sat down, breathed heavily for a moment, and was dead.

The court divided his charge into two parts. The first dealt with accidental means, the second with the provision of the policy requiring that death must be the direct and proximate result of and be caused solely and exclusively by, external, violent and accidental means. In so dividing his charge the court was quite correct, for the question of whether there was here an accident within the terms of the policy was the primary question to be decided.

The court charge as follows: ‘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 unforseen consequences of his efforts to extricte 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. To be more explicit, if you find that Mr. Burr died as a result of overexposure or overexertion, or by slipping and falling against the shovel and against the car or by a combination of all three and if you further find that he could not have been reasonably expected to anticipate such results from his actions on the day in question, then you way find that the essential accidental means exist.’

Defendant's counsel excepted to that portion of the charge.

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. We have indicated the ‘means' which a jury could have found caused the bodily injuries resulting in the death of plaintiff's husband, and have pointed out the incidents occurring on that morning which in our opinion would cause the average man to include such means in the term ‘accidental’ as used in the policy. Here it was not only the result of such incidents which were unexpected, but a jury could find that the catastrophe was brought about by the intervention of unintended and unexpected means, such as the automobile collision, the blizzard and wind storm, a slip or a twist of the body, resulting in a fall and trauma, placing a strain upon the body which the body could not withstand.

Our guide must be the reasonable expectation and purpose of the ordinary business man when making an insurance contract such as we have here.

‘It is his intention, expressed or fairly to be inferred, that counts. There are times when the law permits us to go far back in tracing events to causes. The inquiry for us is how far the parties to this contract intended us to go. The causes within their contemplation are the only causes that concern us.’ Bird v. St. Paul F. & M. Ins. Co., 224 N.Y. 47, 51,120 N.E. 86, 87, 13 A.L.R. 875.

In Leyland Shipping Co. v. Norwich Union Fire Ins. Society, 118 L.T. 120, 125, 87 L.J.(K.B.) 395, cited with approval in the Bird case, it was pointed out that ‘causation is not a chain, but a net. At each point, influences, forces, events, precedent and simultaneous, meet, and the radiation from each point extends infinitely.’ Returning to Bird v. St. Paul F. & M. Ins. Co. (supra), we quote further: ‘The same cause producing the same effect may be proximate or remote as the contract of the parties seems to place it in light or shadow. That cause is to be held predominant which they would think of as predominant. A common-sense appraisement of everyday forms of speech and modes of thought must tell us when to stop. It is an act of ‘judgment as upon a matter of fact.’ Leyland Shipping Co. v. Norwich Fire Ins. Society, supra,' See, also, Lewis v. Ocean Acc. & G. Corporation, 224 N.Y. 18, 20, 21,120 N.E. 56, 57, 7 A.L.R. 1129;Silverstein v. Metropolitan Life Ins. Co., 254 N.Y. 81, 86, 171 N.E. 914, 915;Schwartz v. Commercial...