Korfin v. Continental Cas. Co., A--140

• Decision Date: 22 May 1950
• Docket Number: No. A--140,A--140
• Citation: 5 N.J. 154,74 A.2d 312
• Parties: KORFIN v. CONTINENTAL CASUALTY CO.
• Court: New Jersey Supreme Court

Page 154

5 N.J. 154

74 A.2d 312

KORFIN v. CONTINENTAL CASUALTY CO.

No. A--140.

Supreme Court of New Jersey.

Argued May 22, 1950.

Reargued on the Court's own Motion

June 19, 1950.

Decided June 27, 1950.

Abe Jacklen, Newark, argued the cause for the appellant.

Michael J. Donlon, Newark, argued the cause for the respondent (George D. McLaughlin, Newark, attorney).

The opinion of the court was delivered by

ACKERSON, J.

Plaintiff appealed to the Appellate Division of the Superior Court from an adverse judgment entered on a verdict of no cause of action found by the trial judge, sitting without a jury, in the Law Division of that court, and the appeal, while pending below, was certified here on our own motion.

The action was to recover on an insurance policy issued by the defendant to plaintiff's husband, Alex Korfin, in which plaintiff was the named beneficiary. The policy provided, Inter alia, as follows:

'This policy provides indemnity for loss of life resulting from non-occupational bodily injury effected through accidental means * * *.'

"Injury' as used in this policy means bodily injury which is the sole cause of the loss and which is effected solely through accidental means while this policy is in force.'

The facts are not in dispute and come before us in the form of an 'Agreed Statement in Lieu of Record' pursuant to Rules 4:2--6 and 1:2--22, in which statement appear the following pertinent facts: 'On April 21, 1947, the insured voluntarily and on his own initiative made and kept an appointment and was vaccinated by his family physician, Dr. Harry Friedman, with a vaccine for the prevention of smallpox. His death ensued eleven days thereafter, and it is agreed that the cause of the decedent's death was 'post vaccinal encephalitis' as confirmed by the autopsical findings of Dr. Harrison S. Martland, Essex County Medical Examiner.' The insured died on May 2, 1947, eleven days after the vaccination.

Encephalitis is defined as 'inflammation of the brain' and postvaccinal encephalitis as 'an acute form of encephalitis which sometimes follows the administration of vaccine' (Maloy's Medical Dictionary for Lawyers, p. 181). At the oral argument of this appeal it was agreed by counsel for each party that the encephalitis which caused the insured's death was produced by the vaccine used in his vaccination.

On this state of facts the trial court concluded that the insured's death was not a compensable loss within the purview of the policy because death was not caused by 'accidental means' and judgment was thereupon entered in favor of the defendant which judgment is the subject of this appeal.

Two questions are presented: (a) was the appeal taken within time under Rules 4:2--5 and 1:2--5 which require appeals to be taken in a case such as this within 45 days after the entry of judgment, and (b) was the death which ensued after the vaccination 'effected solely through accidental means' within the meaning of the policy?

Proceeding In limine to consider the first question, we note that the judgment was entered in the Law Division of the Superior Court on December 21, 1949. On January 30, 1950 the defendant was served with and acknowledged service on a copy of the notice of appeal which plaintiff mailed to the Clerk of the Superior Court the following day, January 31, 1950, together with a check in the sum of $20. The said notice of appeal arrived in the clerk's office on February 1, 1950 but was not filed that day since the requisite filing fee is $25 and the account of plaintiff's counsel was $1.74 short of this amount. On February 3, 1950 the attorney was apprised of this fact and on that day a check to cover the deficiency was mailed to the clerk. In the usual course of the mails, this check should have been received by the clerk's office the following morning, Saturday, February 4, 1950 which was the last day for filing. However, according to the practice then prevailing, mail addressed to state offices and received in the State House on a Saturday was not distributed in the various offices in the 'Annex', including the clerk's office, until the following Monday morning and consequently was stamped as received on that day. This, notwithstanding the fact that the clerk's office was open on Saturday mornings during that period for the transaction of necessary business. Therefore, in the instant case a stamp was placed upon the notice of appeal on Monday, February 6, 1950, indicating its filing on that date--two days later than the prescribed period of 45 days.

The time fixed by the rules within which an appeal must be taken cannot be relaxed. Rules 4:1--10 and 1:7--9; In re Horton's Estate, 1 N.J. 571, 65 A.2d 60 (1949). We think, however, under the foregoing circumstances, this notice of appeal should have been marked filed February 4, 1950, and conclude that the appeal was taken within time.

We now turn our attention to the second and meritorious question presented for solution, i.e., whether the death of the insured following his vaccination was the result of 'accidental means' within the terms of the policy.

Defendant attempts to draw a distinction between policies providing for payment for loss effected solely through 'accidental means' and benefits payable because of 'accidental result' contending that the instant case falls within the latter classification. The position taken by the insurance company is, in substance, that where death occurs as the result of an intentional act, voluntarily undertaken by the assured, it cannot be said to have been caused by accidental means.

We recognize that there is considerable division of authority upon the construction of policies using the term 'accidental means'. Some adhere to the view that if the means which cause an injury are voluntarily employed, the resulting injury although entirely unusual, unexpected and unforeseen is not produced through accidental means.

In this jurisdiction, however, our courts, following the rule laid down in the case of United States Mutual Accident Association v. Barry, 131 U.S. 100, 9 S.Ct. 755, 33 L.Ed. 60, (U.S.1889) have held that it is sufficient to render the means accidental, if in the act which precedes the injury, something unforeseen, unexpected, unusual occurs, which produces the injury. Lower v. Metropolitan Life Insurance Co., 111 N.J.L. 426, 168 A. 592 (E. & A.1933); Riker v. John Hancock Mutual Life Ins. Co., 129 N.J.L. 508, 30 A.2d 42 (Sup.1943). In the latter case, 129 N.J.L. at pages 510-511, 30 A.2d at page 44 it was stated that 'The term 'accidental means' was employed in the policy in its usual and popular sense, i.e. as signifying a 'happening by chance; unexpectedly taking place; not according to the usual course of things; or not as...