On appeal from the District Court of the Second Judicial District of Hudson county.
For the defendant-appellant, Perkins, Drewen & Nugent (John Drewen, of counsel).
For the plaintiff-respondent, Andrew J. Markey.
Before Justices Trenchard, Bodine and Heher.
The opinion of the court was delivered by
TRENCHARD, J. This action was brought by the beneficiary of the insured to recover upon two policies, issued by the defendant insurance company, for additional amounts claimed to be due under the additional death benefit provision of the policies.
The provisions of the policies in question, in so far as they are now pertinent, read:
"Upon receipt of due proof that the insured * * * has sustained, after the date of this Policy, bodily injuries, solely through external, violent and accidental means, resulting directly and independently of all other causes, in the death of the Insured within ninety days from the date of such bodily injuries while this Policy is in force, * * * the Company will pay in addition to any other sums due under this Policy and subject to the provisions of this Policy an Accidental Death Benefit equal to the face amount of insurance then payable at death * * *. No Accidental Death Benefit will be paid if the death of the Insured is the result of self-destruction, whether sane or insane, nor if death is caused or contributed to, directly or indirectly, or wholly or partially, by disease, or by bodily or mental infirmity * * *."
The trial judge, sitting without a jury, entered judgment for the plaintiff.
The sole specification of alleged error is that "the trial judge erroneously denied defendant's motion made at the conclusion of the entire case for a direction of a verdict in its favor."
Now when that motion was made the evidence tended to show the following matters of fact: The insured at the time of his death was about sixty years of age. On July 15th, 1934, the body of the insured was found in the water at or near the bank of the Hackensack river. Almost immediately thereafter the chief of police of Secaucus and Dr. Leonard Kimmel, a physician connected with the Secaucus General Hospital, were called to the scene. They found the body fully clothed, with the exception of shoes and stockings, and the clothing and the body wet. Resuscitation methods used
in drowning cases were applied for forty minutes by Dr. Kimmel, and thereafter the doctor pronounced the insured dead. The doctor testified that for a month prior to the insured's death he had attended the insured, and at that time found him suffering from a "weakening of the musculature of the heart," and kindred troubles such as "start about the age of fifty." He further testified that during his examination of the wet body, and in his attempt at resuscitation, there was no indication of any superficial wounds or abrasions, but that a froth came out of the mouth such as would not be seen in cases which had not been in the water. After forty minutes of resuscitation effort the doctor pronounced the body dead. Soon thereafter the body was examined by Dr. Manuel Hernandez, the assistant county ...