Rosenthal v. Mutual Life Ins. Co. of New York
| Decision Date | 20 October 1960 |
| Citation | 8 N.Y.2d 1075,207 N.Y.S.2d 450 |
| Parties | , 170 N.E.2d 455 Anna B. ROSENTHAL, Respondent, v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, First Department, 7 A.D.2d 182, 181 N.Y.S.2d 549.
Beneficiary brought action against insurer to recover double indemnity benefits under two life policies. The Supreme Court, Trial Term, New York County, Felix C. Benvenga, J., 3 Misc.2d 181, 155 N.Y.S.2d 478, rendered judgment dismissing the complaint after trial, and the beneficiary appealed.
The Appellate Division, 7 A.D.2d 182, 181 N.Y.S.2d 549, reversed the judgment, ordered new trial, and held that question whether death of insured occurred by accidental means or as result of an accident within meaning of double indemnity provisions of policies was for jury, where operation was performed on insured for removal of his gall bladder, and complications thereafter developed and six or seven days after operation X-ray disclosed an intestinal obstruction due to a kinking of the bowel as result of adhesions to site of operation, and second operation was performed and the kink was removed, but the obstruction had caused irreversible damage to insured's kidneys, and he died seven days later of uremic poisoning. Bastow and Breitel, JJ., dissented.
The insurer appealed to the Court of Appeals, contending that there was no accident within meaning of double indemnity provisions of policies, and that the alleged accident was not due to external means, and that death was due directly or indirectly to disease or bodily infirmity and was not covered by the double indemnity provisions of the policies, and that there was no jury question, and that Trial Term properly directed a verdict for the insurer.
Haughton Bell, New York City (John G. Kelly, and Edward A. Voegeli, New York City, of counsel), for defendant-appellant.
Leon Wasserman, New York City, for plaintiff-respondent.
Order of the Appellate Division reversed and the judgment of Trial Term reinstated with costs in this Court and in the Appellate Division, upon the ground that on this record no issue of fact is presented as to whether the death of the insured was accidental within the meaning of the double indemnity policy provision that such death shall 'result directly in bodily injury effective solely through external, violent and accidental means, indirectly and exclusively of all other causes.'
All concur except ...
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