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Kennedy v. United States Fidelity and Guaranty Co.

Decided: September 27, 1934.

MABEL KENNEDY, ADMINISTRATRIX OF THE ESTATE OF PATRICK H. KENNEDY, DECEASED, PLAINTIFF-RESPONDENT,
v.
UNITED STATES FIDELITY AND GUARANTY COMPANY, A BODY CORPORATE, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the plaintiff-respondent, Samuel D. Williams.

For the defendant-appellant, Cecil S. Ackerson and Melvin A. Philo.

Case

The opinion of the court was delivered by

CASE, J. Plaintiff sued to recover for the death of her husband, Patrick H. Kennedy, on a policy issued by the defendant company. Judgment went for the plaintiff, and defendant appeals.

Plaintiff's intestate was a member of the volunteer fire department of the borough of Rumson, holding the position of senior driver, and as such was entitled to the benefit of a group policy which insured the members of that department, to quote the policy, "against bodily injuries sustained by any such member through external, violent and accidental means while he is actually in the performance of his duties as a member of the volunteer fire department named herein, and solely from causes growing out of and attendant upon such duties, and not otherwise," but not against "any accidental bodily injury caused or contributed to, directly or indirectly, by sickness or disease."

Kennedy, on the night of February 11th, 1932, answered with other members of the department, a fire alarm and drove his company truck, a one thousand-gallon pumper weighing between thirteen and fourteen tons and measuring about twenty-three feet in length over all, through a thick fog to and from the source of the alarm. As the truck, bearing its quota of firemen, was proceeding down Ridge road in the

borough of Rumson at a speed between twenty-five and thirty miles an hour another borough fire apparatus swung into Ridge road from a side street and in so doing loomed up through the fog in such proximity to the truck that there was great danger of a collision. Kennedy made a quick turn of the wheel, causing the truck to swerve to the left so violently that one of his fellows was almost catapulted into the other apparatus. The truck, paralleling the other apparatus for a few feet along Ridge road, soon fell behind and followed to the scene of the fire. There was no contact or collision between the two apparatuses. The blaze was insignificant, and the truck, still driven by Kennedy, who apparently had not been out of the driver's seat, was returned without delay to its house. Kennedy thereupon got down from the truck, asked for a cigarette and, without more, dropped unconscious to the floor. He never revived. Fifteen minutes had elapsed between the avoidance of the collision and Kennedy's collapse. The record of the company shows that the truck left the firehouse at nine-ten and returned at nine-thirty. Kennedy was forthwith carried to the Red Bank Memorial Hospital, where, eight or ten minutes after his collapse, he was examined by a physician and pronounced dead. The recovery was upon the theory that Kennedy's death was due to acute dilatation of the heart, an injury caused by accidental strain incident to the near-collision.

Appellant wrote down seven grounds of appeal, of which all but the third and fourth are now abandoned. The third ground is that "the trial court erred in denying defendant's motion for direction of a verdict in favor of the defendant against the plaintiff," and is comprehensive of so much of the fourth as is well taken. Wherefore the single litigated question is whether the trial court erred in denying the defendant's motion for a direction of verdict.

The appellant contends that its trial attorney in making the motion for a direction presented the following reasons: (1) there was no proof that the insured suffered death as the result of bodily injury sustained through external, violent

and accidental means; (2) there was not sufficient and positive proof of bodily injury to the insured as required by law; (3) the death of the insured was not solely the result of bodily injury sustained through external, violent and accidental means; (4) the death of the insured was not the result of bodily injury but was caused or contributed to by disease. We are in doubt whether the argument before the trial court precisely stated all of these reasons, but we shall assume that it ...


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