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Kresse v. Metropolitan Life Insurance Co.

Decided: September 27, 1933.

SELMA KRESSE, PLAINTIFF-RESPONDENT,
v.
METROPOLITAN LIFE INSURANCE COMPANY, DEFENDANT-APPELLANT; SELMA KRESSE, PLAINTIFF-RESPONDENT, V. EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, DEFENDANT-APPELLANT



On appeal from the New Jersey Supreme Court (Essex county).

For the appellant Metropolitan Life Insurance Company, Perkins, Drewen & Nugent.

For the appellant Equitable Life Assurance Society, Collins & Corbin (Edward A. Markley, of counsel).

For the respondent, Richard Doherty.

Brogan

The opinion of the court was delivered by

BROGAN, CHIEF JUSTICE. This is an appeal from a judgment in favor of the plaintiff below, Selma Kresse, and against the defendants, Metropolitan Life Insurance Company and the Equitable Life Assurance Society of the United States. There were two actions, one against each company, and they were consolidated.

Mrs. Kresse was the beneficiary named in the policies of accident insurance issued by these companies to her husband, now deceased. The contract issued by the Metropolitan Life Insurance Company contained an agreement to pay the beneficiary the sum of $5,000 in case of death of the insured "caused directly and independently of all other causes by violent and accidental means." There was a further provision that "this insurance shall not cover suicide or any attempt thereat while sane or insane." A like provision in the policy of the Equitable Life Assurance Society of the United States was to the effect that the indemnity was payable "upon due proof that the death of the insured resulted solely from bodily injuries caused directly, exclusively and independently of all other causes by external, violent and purely accidental means," and a provision that such injuries or death shall not be the result of "or caused directly or indirectly by self-destruction, &c."

The deceased husband of the plaintiff was forty-five years of age at the time of his death and lived with his wife and twelve-year-old daughter in their own home. He was a drafts-man by profession and, at the time of his death, unemployed. His wife made a living for the family as a dressmaker. On the day that the insured died, he was alone in the house, his wife and daughter having left about three-ten o'clock in the afternoon so that the twelve-year-old daughter might go to a dancing class. They were expected back about seven o'clock

in the evening, the deceased having said that he would have the supper ready. That evening, at about five minutes before seven, the mother and daughter returned, found the house in darkness, rang the front door bell and, getting no response, called upon a neighbor for help. The result was that when entrance was gained by way of the cellar, the insured was found dead from asphyxiation by illuminating gas. The neighbor who had forced an entrance into the house testified that upon entering the cellar he smelled gas; thence he proceeded up the rear stairs to the door of the kitchen, the smell of gas increasing. He had a searchlight with him, which he used. On opening the kitchen door, he discovered the body of the insured "sitting on a chair in the breakfast nook, slumped over, laying there, with his head against the table -- sitting down." Four of the valves on the gas range were wide open and the witness described the gas as "roaring" out of the four open burners. All doors and widows were tightly closed. This witness, Berg, shut off two of the open gas valves on the range, and hurrying out of the building, called the police. The officer who responded testified that on entering the house he was met by a "cloud of gas; that everything in the kitchen was closed, the dining room door, the kitchen windows and everything else." On the gas range over the right front burner was a small cooking pot containing some cold water.

Mrs. Kresse brought suit on these policies of insurance, alleging facts that brought the death of her husband within the obligation of the contract of insurance.

The answers deny the allegations in the complaint and set up as separate defenses that due and proper notice of death was not given and that the ...


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