On appeal from the Supreme Court.
For the appellant, Leon E. Cone.
For the respondent, King & Vogt (Harold A. Price, of counsel).
The opinion of the court was delivered by
TRENCHARD, J. This is the appeal of the plaintiff below from a judgment entered upon a verdict in favor of the defendant at Circuit.
On March 11th, 1924, the Monarch Accident Insurance Company, the defendant below, issued a policy of insurance to James F. Runyon providing, among other things, insurance for loss of life caused solely by accidental means. The policy was outstanding at the time of Runyon's death on March 5th, 1929. Payment of the principal sum of the policy, together with accumulations thereon, as set forth therein, was refused by the defendant. The beneficiary under the policy, the plaintiff herein, claimed that Runyon's death was caused solely by accidental means, namely, by a fall on an icy pavement on January 28th, 1929, resulting in a fractured hip. The defendant's refusal to pay was based upon the contention that Runyon's death was not caused solely by injuries sustained in the fall, but in part by a disease known as paralysis agitans from which he was a sufferer. The policy provided that the defendant company was liable only if death resulted "exclusively from bodily injuries caused solely by external, violent and accidental means." The jury found a verdict of no cause for action, judgment was entered thereon, and the plaintiff appealed.
The plaintiff-appellant made no motion for a direction of a verdict, and her grounds of appeal are only those now to be considered.
She says that the verdict is against the weight of the evidence. But that question is not before us for this reason: On appeals in civil cases at law, as here, the court is concerned only with correcting errors in law, and will not consider a ground of appeal that the verdict is against the weight of the evidence. Auer v. Sinclair Refining Co., 103 N.J.L. 372.
The plaintiff next contends that the judge erred in charging this: "The defense appears to be that as a matter of fact Mr. Runyon did not die solely of the accident which resulted in a fractured hip, and if that be true then the beneficiary cannot recover."
Our examination of the record discloses that such was the defense, and that the instruction was pertinent in view of the evidence. The defense was a good defense if established by the greater weight of the evidence, and, so, we find no fault with the instruction.
It is argued that the instruction was erroneous in law. We think not. It was in accordance with the express and unambiguous terms of the policy contract which limited the insurer's liability to death resulting "exclusively from bodily injuries caused solely by external, violent and accidental means." The instruction was well within the general rule that, under such a policy, if the insured, at the time of the accidental injury, was also suffering from a disease, and the disease aggravated the effects of the accident, and actively contributed to the death occasioned thereby, there can be no recovery upon the policy. 14 R.C.L. 1246; Travellers Insurance Co. v. McConkey, 127 U.S. 661; Western Commercial Travellers Association v. Smith, 85 Fed. Rep. 401; 56 U S. App. 393; 29 C.C.A. 223; 40 L.R.A. 653; Maryland ...