On appeal from the Supreme Court, Monmouth County Circuit.
For the appellant, Theodore D. Parsons.
For the respondent, Clifford I. Voorhees.
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. The judgment under review resulted from a trial of an action upon a policy of insurance. The cause was tried, by agreement, before the trial judge without a jury upon an agreed state of facts and resulted in the judgment in question in favor of the defendant below.
The facts are not in dispute and we quote them as they are contained in the opinion of the trial judge:
"The circumstances involved are that Francis T. Lower, fifty years of age, a laborer in the employ of one Raub, was on August 4th, 1930, the holder of a so-called double indemnity policy, theretofore issued to him by the defendant-company, and in force, covering life insurance in a stated amount and a like sum in case of death, as the result, directly and independently of all other causes, of bodily injuries sustained through external, violent and accidental means.
"August 4th, 1930, was evidently a torrid day, and in the morning he had been working out of doors at his usual employment, which he resumed after his mid-day meal. At two o'clock the temperature registered ninety-four degrees Fahrenheit. Sometime during the afternoon he suffered a sunstroke, from the effects of which he died."
The contract of insurance provided that the respondent company "hereby agrees to pay to the beneficiary or beneficiaries of record under said policy, in addition to the amount
payable according to the terms of the said policy the sum of one thousand dollars, upon receipt * * * of the proof of the death of the insured, as the result, directly and independently of all other causes, of bodily injuries sustained through external, violent and accidental means; provided, * * * (5) that death shall not have been the result of self-destruction, whether sane or insane, or caused by or contributed to, directly or indirectly, or wholly or partially, by disease or bodily or mental infirmity * * *."
The learned trial judge, in reaching his conclusion, that death by sunstroke is not "through external, violent and accidental means" held that it is not accidental but is in fact a disease.
We do not reach this conclusion.
This presents two outstanding matters for consideration:
1. Is sunstroke an accident and does the infliction and injury arise ...