Silverstein v. Metro. Life Ins. Co.

• Decision Date: 03 June 1930
• Citation: 254 N.Y. 81,171 N.E. 914
• Parties: SILVERSTEIN v. METROPOLITAN LIFE INS. CO.
• Court: New York Court of Appeals Court of Appeals

254 N.Y. 81

171 N.E. 914

SILVERSTEIN

v.METROPOLITAN LIFE INS. CO.

Court of Appeals of New York.

June 3, 1930.

Action by Ida Silverstein against the Metropolitan Life Insurance Company. Judgment of the Appellate Division (228 App. Div. 761, 239 N. Y. S. 835), affirming, by a divided court, a judgment of the Trial Term in favor of plaintiff, and defendant appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, First Department.

Dean Potter, Charles B. La Voe, Edward M. Grout, and Paul Grout, all of New York City, for appellant.

B. B. Fensterstock, Bernard Gordon, and Isidor Block, all of New York City, for respondent.

CARDOZO, C. J.

Defendant issued its policy of insurance whereby it insured plaintiff's husband against the results of bodily injuries ‘caused directly and independently of all other causes by accidental means,’ the insurance in the event of his death to be payable to his wife. The policy was not to ‘cover accident, injury, disability, death or other loss caused wholly or partly by disease or bodily or mental infirmity or medical or surgical treatment therefor.’

The insured, while lifting a milk can into an ice box, slipped and fell, the can striking him on the abdomen and causing such pain that he was unable to get up. A surgeon, opening the abdomen, found a perforation at the junction of the stomach and the duodenum, through which the contents of the stomach escaped into the peritoneum, causing peritonitis and, later, death. At the point of perforation there had been a duodenal ulcer, about the size of a pea. The existence of this ulcer was unknown to the insured, and, were it not for the blow, would have had no effect upon his health, for it was dormant and not progressive, or so the triers of the facts might find. Even so, there had been a weakening of the wall in some degree, with the result that the impact of the blow was followed by perforation at the point of least resistance. The question is whether death was the result of an accident to the exclusion of other causes.

We think the evidence sustains a finding that the ulcer was not a disease or an infirmity within the meaning of the policy. Left to itself, it would have been as harmless as a pimple or a tiny scratch. Only in the event that it was progressive would it become a source of pain or trouble. If dormant, as it was found to be, it was not only harmless in itself, but incapable of becoming harmful except through catastrophic causes, not commonly to be expected. In a strict or literal sense, any departure from an ideal or perfect norm of health is a disease or an infirmity. Something more, however, must be shown to exclude the effects of accident from the coverage of a policy. The disease or the infirmity must be so considerable or significant that it would be characterized as disease or infirmity in the common speech of men. Eastern Dist. Piece Dye Works v. Travelers' Ins. Co., 234 N. Y. 441, 453, 138 N. E. 401, 26 A. L. R. 1505. ‘Our guide is the reasonable expectation and purpose of the ordinary business man when making an ordinary business contract.’ Bird v. St. Paul Fire & Marine Ins. Co., 224 N. Y. 47, 51,120 N. E. 86, 87,18 A. L. R. 875;Goldstein v. Standard Accident Ins. Co., 236 N. Y. 178, 183, 140 N. E. 235, 236;Van Vechten v. American Eagle Fire Ins. Co., 239 N. Y. 303, 146 N. E. 432, 38 A. L. R. 1115. A policy of insurance is not accepted with the thought that its coverage is to be restricted to an Apollo or a Hercules.

A distinction, then, is to be drawn between a morbid or abnormal condition of such quality or degree that in its natural and probable development it may be expected to be a source of mischief, in which event it may fairly be described as a disease or an infirmity, and a condition abnormal or unsound when tested by a standard of perfection, yet so remote in its potential mischief that common speech would call it not disease or infirmity, but at most a predisposing tendency. Leland v. Order of United Commercial Travelers of America, 233 Mass. 558, 564, 124 N. E. 517;Collins v. Casualty Co. of America, 224 Mass. 327, 112 N. E. 634, L. R. A. 1916E, 1203;Mutual Life Ins. Co. v. Dodge of New York (C. C. A.) 11 F.(2d) 486, 489,59 A. L. R. 1240, certiorari denied, 271 U. S. 677, 46 S. Ct, 629, 70 L. Ed. 1147; Taylor v. New York Life Ins. Co., 176 Minn. 171, 174, 222 N. W. 912, 60 A. L. R. 959. There will be no recovery under a policy so written where an everyday act, involving ordinary exertion, brings death to an insured because he is a sufferer from heart disease. Allendorf v. Fidelity & Casualty Co. of New York, 250 N. Y. 529, 166 N....