On defendant's appeal from the District Court.
For the appellant, Drewen & Nugent (John Drewen, of counsel).
For the respondent, Charles A. Rooney (Gustave A. Peduto, of counsel).
Before Justices Trenchard, Parker and Perskie.
The opinion of the court was delivered by
PARKER, J. This is a suit on two life insurance policies issued by the defendant-appellant, and based on a clause of extra indemnity for death by accident. The relevant language of the policies is as follows: "Upon receipt of due proof that the insured * * * has sustained bodily injury, solely through external, violent, and accidental means * * * and resulting directly and independently of all other causes, in the death of the insured. * * * No accidental death benefit will be paid * * * if death is caused or contributed to, directly or indirectly, or wholly or partially, by disease, or by bodily or mental infirmity * * *."
The case was tried without jury, and the judge as the trier of facts as well as law, found for the plaintiff beneficiary named in the policies for the amount of "accidental death benefit," the ordinary death claim having been paid. This necessarily involved a finding of fact by the trial judge that the death of the deceased had occurred under circumstances satisfying the language of the policy above quoted; and the sole point raised on this appeal is that there was no such evidence. There are four specifications of causes for reversal which read as follows
"1. The trial court erred in denying defendant's motion for a direction of verdict at the conclusion of the entire case.
"2. The trial court erroneously, and without any evidence whatsoever in the case to support it, found that the insured had sustained bodily injuries solely through external, violent and accidental means, which resulted directly and independently of all other causes in the death of the insured.
"3. The trial court erroneously, and without any evidence whatsoever in the case to support it, found that the insured met her death through external, violent and accidental means, directly and independently of all other causes
"4. The trial court erroneously, and without any evidence whatsoever in the case to support it, entered judgment in favor of plaintiff and against the defendant."
The first specification is technically inappropriate to a case in which there was no jury, although accurate as regards the motion that was in fact made at the conclusion of the evidence in the District Court. The phrase "direction of verdict" has recently been criticized by this court as inept as regards the disposition of a case tried without jury. River Park Homes Corp. v. Hammond, 120 N.J.L. 519 (at p. 521). But as in that case, we are content to treat the motion at the trial and the specification here as referring to the refusal of the trial court to render judgment for the defendant on one or both of the grounds set up in specifications 2 and 3.
Specification 4, as appears, challenges the positive action of the court in rendering a judgment for the plaintiff.
The meritorious question, therefore, to be determined on this appeal is whether there was adduced at the trial any evidence which would support the finding by the trial judge that death occurred under circumstances satisfying the quoted condition of the policy, as this court on appeal from the District Court has no power to review findings of fact. R.S. 2:32-202; Burr v. Adams Express Co., 71 N.J.L. 263; Baldwin v. Golden Star Fraternity, 47 Id. 111 (for the statute referred to in that case see Revision 1877, page 1330, section 171); Ellis Co. v. Eyth, 69 Id. 579; Phelps v. Seymour, 70 Id. 626; Buckley v. Ellsworth Camp, &c., 93 Id. 450. The evidence at the trial to support the case for the plaintiff, it should be stated, was meagre and unsatisfactory; and if we were reviewing a verdict on the ground that it was against the weight of evidence we should doubtless feel impelled to set aside that verdict. But the case before us does not involve the weight of evidence. As already noted, it involves simply the question whether there was legal evidence to support the finding; and in this respect closely resembles the case of McNamara v. Metropolitan Life Insurance Co., 117 Id. ...