Wilson v. Travelers Ins. Co.
| Decision Date | 07 March 1968 |
| Parties | Araminta M. WILSON, Appellant, v. TRAVELERS INSURANCE COMPANY, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Valent, Callanan & Ruger, Watkins Glen (Henry Valent, Watkins Glen, of counsel), for plaintiff-appellant.
Personius, Cramer, Mustico & Sullivan, Elmira (Ralph S. Cramer, Elmira, of counsel), for defendant-respondent.
Before HERLIHY, J.P., and REYNOLDS, AULISI, STALEY and GABRIELLI, JJ.
This is an appeal from a judgment of the Supreme Court in favor of defendant entered April 13, 1967 in Schuyler County upon a dismissal of the complaint by the court at a Trial Term at the close of plaintiff's case.
The plaintiff's husband, Harry H. Wilson, an employee of the Corning Glass Works, Corning, New York, was insured by the defendant under a Group Accident Insurance Policy covering employees of Corning Glass Works. This policy provided coverage for loss of life caused through accidental means but excluded any loss '(1) caused or contributed to by bodily or mental infirmity, disease or infection * * * even though the proximate and precipitating cause of the loss is accidental bodily injury;' and '(4) resulting directly or indirectly from medical or surgical treatment for any kind of disease.'
On July 13, 1965 Harry H. Wilson died as the result of a cardiac arrest which occurred on July 2, 1965 while an anesthesia was being administered preparatory to an investigative surgical operation. Although the policy was in force, and the plaintiff duly served notice and proof of death upon the defendant, the defendant refused to pay the death benefit under the policy. In her complaint, the plaintiff alleges that the insured died through accidental means independently and exclusively of disease and all other causes. The answer of the defendant alleges that insured's death did not result directly and independently of all other causes through accidental means, and that his death resulted directly or indirectly from medical or surgical treatment for a disease.
The trial of this action commenced before a jury on March 14, 1967, and at the end of the plaintiff's case, the defendant moved for a nonsuit and dismissal of the plaintiff's complaint on the ground that the plaintiff's proof indicated that the insured's death was caused or contributed to by bodily disease, and was the result of medical and surgical treatment for a disease, which motion was granted by the trial court.
The plaintiff appeals contending that the issue of the existence or non-existence of a bodily infirmity or disease, and the issue of whether the loss resulted solely from accident, independent of all other causes, are questions of fact for the jury to decide.
The plaintiff's medical expert, Dr. Thomas, gave testimony to the effect that Harry Wilson had hypertension, and that it was determined that he should have a...
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