Regan v. National Postal Transport Ass'n
| Decision Date | 25 May 1967 |
| Citation | 280 N.Y.S.2d 319,53 Misc.2d 901 |
| Court | New York City Court |
| Parties | Dorothy E. REGAN, Plaintiff, v. NATIONAL POSTAL TRANSPORT ASSOCIATION, Inc., Defendant. |
William V. Homans, New York City, for plaintiff.
Zelby & Burstein, Abraham Burstein, New York City, of counsel, for defendant.
This is an action upon a $4,000 benefit certificate issued by the defendant association to the deceased, Frank D. King, the stepfather of the plaintiff, Dorothy Regan. She sues in her own right as beneficiary to recover the proceeds of an accident insurance policy. It was tried before the Court without a jury.
The essential facts are as follows: On June 4, 1953, the defendant, The United Federation of Postal Clerks Benefit Association, s/h/a, National Postal Transport Association, Inc., a fraternal benefit association organized under the laws of the State of New Hampshire to provide accident insurance to certain classes of Federal employees, issued a certificate of membership, No. 35638, in the Beneficiary Department of its association in the amount of $4,000 to Frank D. King, then a member of the New York Branch of the Association. It entitled him while living to participate in the benefits of the Benefit Fund upon the happening of various bodily in juries sustained by him through external violent and accidental means not the result of his own vicious or intemperate conduct which should wholly and continuously disable him from following the occupation of a Postal Transportation Clerk in the Postal Transportation Service of the United States.
Paragraph numbered 4 of the certificate covered payment of 'death benefits'. The wording used therein and which is determinative of this case reads as follows:
'If death shall result from such injuries alone within one year from the date of the injury, the Association will pay $4,000, * * * to Dorothy E. Regan, Step-daughter.
Provided, however, no benefit or sum whatsoever shall be payable in any case whatsoever unless the accident alone results in producing visible external marks of injury or violence suffered by the body of the member, nor unless the death or disability results wholly from the injury, and within the time above specified. Nor shall any benefit be paid where death or disability results from voluntarily inflicted injuries, by the member, be he sane or insane; nor from poison or other injurious matter taken or administered accidentally or otherwise; nor as the result of any surgical operation.
Accidental death shall be construed to be either sudden, violent death from external violent and accidental means, resulting directly from such accidental means, independently and exclusively of any other causes, and not the direct or indirect result of the member's own vicious or unlawful conduct; or death within one year, as the sole result of accidental means alone. There shall be no liability whatever when disease, defect or bodily infirmity is a contributing cause of death.'
On March 31, 1962, while the contract was in force and effect, Frank D. King died. He was then 80 years of age and a patient at the Veterans Administration Hospital in Bath, New York. He had been confined thereto for approximately 22 months prior to his death. Following notification of death and submission of proof thereof by plaintiff and a refusal by defendant to pay the benefit, the instant action was commenced. The defendant at trial conceded the existence of the contract and the status of plaintiff as beneficiary thereunder. It denied and contested, however, the accidental death as that term is defined in the policy.
Thus the sole issue tried was whether or not the insured's death was caused by an accident within the meaning of the policy.
Plaintiff's proof consisted of two parts. First, a properly certified copy of a certificate of death issued by the Office of Vital Records of the New York State Department of Health. It was offered in evidence by plaintiff to establish the cause of death of Frank D. King. In view of defendant's objection to its receipt in evidence for such purpose, it was accepted by the Court solely to establish the fact of death. Decision was reserved on its admissibility to show the cause of death. The certificate contained the following significant information relative to the cause of death in that part of the certificate entitled 'Medical Certification':
of injury in Part I or Part II of item 19)
Accident due to swallowing of foreign object (sock).
Bath, N.Y.
"23. c. Date signed 3.31.62"
Second, the plaintiff offered the testimony of Daniel H. Eichner, a medical doctor of some 36 years practice, who estimated treating about a thousand cases of cerebral arteriosclerosis during his career. He did not testify to treating the decedent during his lifetime or attending him at the time of his death or thereafter. A number of hypothetical questions were asked him over objection of defendant on the ground that no foundation was laid for the questions, since the defendant claimed they were predicated on facts not in evidence, particularly in view of the defendant's position as to the admissibility of the death certificate to establish cause of death. The questions hereinafter set forth were permitted to be answered, subject to a reservation of decision by the court as to their ultimate admissibility.
'Q. Doctor, would you state your opinion as to whether the presence of a sock in a man's pharynx and suffocation because of its being there and death ensuing therefrom would be considered a death by external and violent means?
A. The answer to the question is Yes.
Q. On what do you base that, doctor?
A. I base my answer on the question as stated, that a sock being a foreign body in a person's pharynx is an external and violent force and could suffocate a patient.
Q. Would the presence of a foreign object such as a sock in the pharynx of a much younger man not necessarily suffering from cerebral arteriosclerosis be capable of causing death?
A. The answer is Yes.
Q. Doctor, would you say that the presence of a sock in a person's pharynx would be a visible external mark of injury on such a person's body?
A. The answer is Yes.'
Following this the plaintiff rested her case. The defendant rested without offering any proof. It thereafter moved to dismiss on the ground that plaintiff failed to prove a case. Decision was reversed to await submission of memoranda which the court acknowledges and for which he thanks counsel for the scholarly excellence of their labors.
A threshold and crucial issue which the court must decide is whether or not a properly certified copy of a record of a death--a death certificate--is admissible to establish the cause of death. If it is not admissible for this purpose, plaintiff may not recover because of failure of proof. If it is admissible--and I believe that it is for the reasons hereinafter stated--plaintiff has overcome the first and most formidable obstacle to obtain judgment.
It will be observed from a review of the many cases in this jurisdiction touching on this question that whether or not a certificate of death may be admitted to show the cause of death, as distinct from establishing the fact of death, is dependent upon the facts peculiar to the particular case. What may at first impression seem like a conflict in views and what may in the case of several decisions of our Court of Appeals seem like a definitive rule of law on the question, may not in reality be such. Rather, it will be seem that this is attributable to the differences in the facts involved or the particular purpose for which, or the particular party by whom, the certificate was sought to be introduced.
If we first consider what in essence is the nature of the type of facts found in such certificates that a party usually wishes to place in evidence, we can better understand the underlying reasons for the various decisions, as well as the significance of the statutes set forth herein bearing on the question.
Such facts are invariably medical ones. They are facts disclosed by the deceased to a physician or ascertained by the physician by observation or examination. Facts of this variety are not hearsay. They may be testified to directly by the physician, subject of course to the privileged communication rule. When recorded on documents, such as death certificates, they are still subject to the privileged communication rule, for this...
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