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

• Decision Date: 03 May 1921
• Parties: TOWNSEND v. COMMERCIAL TRAVELERS' MUT. ACC. ASS'N OF AMERICA.
• Court: New York Court of Appeals Court of Appeals

231 N.Y. 148

131 N.E. 871

TOWNSEND

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

Court of Appeals of New York.

May 3, 1921.

Action by Robert T. Townsend, as administrator of James T. Townsend, deceased, against the Commercial Travelers' Mutual Accident Association of America. From a judgment of the Appellate Division (188 App. Div. 370,177 N. Y. Supp. 68), affirming a judgment of nonsuit entered at Trial Term, plaintiff appeals by permission.

Reversed, and new trial granted.

Appeal from Supreme Court, Appellate Division, Third department.

Henry J. Crawford, of Albany, for appellant.

P. C. Dugan, of Albany, for respondent.

HOGAN, J.

On June 14, 1917, the defendant issued a policy of insurance wherein it undertook to pay the sum of $5,000 upon the death of the assured, James T. Townsend, ‘the direct and approximate result of and which is caused solely and exclusively by external, violent, and accidental means.’ The assured died May 12, 1918, and this action was brought to recover the amount of the indemnity provided for in the policy contract. At the close of plaintiff's case the plaintiff was nonsuited. The facts which the jury might have found were as follows:

The assured, James T. Townsend, was a commercial traveler. He and his daughter, a young lady, resided in an apartment in the city of Albany. Mr. Townsend was a man of usually good health, the only previous illness from which he appears to have suffered being some trouble with boils two or three months before the incident which resulted in his death occurred, and from which trouble he seems to have recovered.

On May 5, 1918, the intestate returned to his home at Albany after a trip of about one week on the road. He appeared to have a bad cold or attack of the grippe, as his condition impressed his daughter, and when he retired that night he was restless, and could not sleep.

The wife of the insured had died about 18 months previous; she had been ill for a considerable period of time with cancer, and the physician who treated her had furnished the insured with a hypodermic needle with which the insured was accustomed to administer morphine to his wife during her illness. That needle he had in his possession at the apartment in which he resided.

About 12 o'clock at night he called his daughter, who was sleeping in a room separated from his room, and upon the daughter entering his room she found the insured with his arm exposed and the hypodermic needle in his hand. Following his request she took the needle and inserted it in her father's arm. There was witch hazel in the room, and hot water in an adjoining room. The daughter thereafter returned to her room, and her father fell asleep and slept until 9 o'clock in the morning. At that time the daughter looked at her father's arm, and discovered a swollen condition at the point where the needle had penetrated, and as the swelling continued to spread a doctor was called. The intestate was shortly thereafter removed to a hospital; the swelling continued, and Mr. Townsend one week later died, as a result of septic poisoning which, as appeared by the medical testimony, began almost immediately after the introduction of the needle in the arm of the insured, due to the fact that either the needle or the skin was unsterile.

Various grounds for a nonsuit were urged by defendant's counsel at the close of plaintiff's case, and the motion for the nonsuit was finally granted by the trial justice on the ground that the possession by Mr. Townsend of the hypodermic needle without a certificate of a physician under article 11-a of the Public Health Law (Consol. Laws, c. 45), as it then existed, was a misdemeanor. In granting the motion for a nonsuit the trial justice stated:

‘Without the unlawful possession of that instrument this result that you claim could not have followed. Viewing it as I do that no man can come into a court and plead and take advantage of a crime he has committed, I am compelled to dismiss the complaint.’

The plaintiff duly excepted thereto, and made the usual motion to go to the jury, which was denied and exception taken. The Appellate Division affirmed the judgment below upon the ground on which the trial justice dismissed the complaint, and incidentally stated that under the language of the policy--

‘There must be not only external and violent means but these must be accidental, and it is an abuse of the word ‘accidental’ to hold that it contemplates an act deliberately done by the insured or at his direction constituting a crime.'

Our conclusion is that the dismissal of the complaint and the affirmance of the judgment of the Trial Term was error.

The provision of the Health Law relied upon by the trial justice is found under the article relating to the habitual use of drugs. The evil sought to be provided against by that law is apparent from the language of section 249-a, which provides:

‘The constant use by any person of any habit-forming drug, except under the direction and consent of a duly licensed physician, is hereby declared to be dangerous to public health.’

Section 249, relative to hypodermic needles, provides:

‘It shall be unlawful for any person or persons, except a licensed pharmacist, licensed druggist, licensed physician, licensed dentist, licensed veterinarian, hospital or regular dealer in medical or surgical supplies to possess such instrument, without having in their possession a certificate from a physician.’

A violation of the provisions of the law is a misdemeanor. Section 249-d. The statute, it will be observed, does not provide that the use of a hypodermic needle is a crime.

We shall first consider the reasons assigned by the trial justice in granting the motion of counsel for defendant for a dismissal of the complaint. The justice held that the insured was guilty of a crime, in that he had in his possession a hypodermic needle without a certificate or permit provided by the Health Law. He then held:

‘Without the unlawful possession of that instrument (hypodermic needle) this result you claim (septic poison, due to an unsterile condition of the needle or the skin or body of the insured which resulted in death) could not have followed.’

Thus the justice in effect held that the proximate cause of the death of the insured was the unlawful possession by him of the hypodermic needle, and such view is emphasized by the language ‘without’ such possession the death of insured would not have resulted.

The death of the insured was not due to an unlawful possession of the hypodermic needle. The statute does not prohibit possession of such needles. It merely requires a certificate or license to possess the same. U...