On appeal from judgment of the District Court of the First Judicial District of the County of Hudson.
For the appellant, Drewen & Nugent (John P. Nugent, of counsel).
For the respondent, Harold Krieger.
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. The question at issue is whether there is a tangible basis in the proofs for the finding of the District Court that plaintiff's decedent suffered death by accidental means within the purview of a life insurance policy obligating the defendant insurer to pay certain additional benefits upon receipt of "due proof" that the insured had "sustained bodily injuries, solely through external, violent and accidental means, * * * resulting, directly and independently of all other causes," in his death.
The essential facts are not in dispute. Defendant adduced no evidence in contravention of the case made by plaintiff. The deceased was employed at Jersey City by the National
Grocery Company. On the evening of June 3d, 1938, he joined employees of this company and other groups on a steamboat excursion up the Hudson River from Jersey City. He was a "very jolly" young man of the age of twenty-five years, and apparently in robust health. He spent the evening "dancing and kidding and fooling." As the boat was "moving into shore" on the return trip, the deceased removed his coat, vest, tie and shoes, and, declaring his intention "to beat the boat in," dived into the water. Before going overboard he addressed a friend standing nearby: "Watch them [his clothes], Scotty. Pick them up when you get to Jersey City." The boat was stopped, but the deceased could not be found. His body was recovered from the water several days later. The death certificate issued by the medical examiner of the City of New York was introduced into evidence by consent; and it disclosed the cause of death as "asphyxia by submersion" under "undetermined circumstances." The deceased was "a very good swimmer."
It is the insistence of the insurer that the coverage of the accidental death benefit clause does not extend to "an unforeseen, unexpected death resulting from means which are intended and deliberate." There is no contention of suicide. Conceding that the insured "fully intended to reach the shore," and that he was "known to be a good swimmer and presumably had indulged in such demonstrations on other occasions," and characterizing his conduct as the "rash act of a youth eager to demonstrate his physical or athletic prowess," the specific point made is that there was an utter lack of evidence of "any unintended chance happening intervening the inception of deliberate means and the unintended result." A distinction is found between "an unexpected, unusual, unforeseen result brought about by means voluntarily undertaken" and "a like result occasioned by means which are accidental." It is said that the deceased "voluntarily assumed the many risks inherent in so foolhardy an exploit" and "recklessly hazarded the very result which in fact occurred." The point is not well taken.
The term "accidental means" was employed in the policy in its usual and popular sense, i.e., as signifying a "happening
by chance; unexpectedly taking place; not according to the usual course of things; or not as expected." The means are "accidental" if, "in the act which precedes the injury, something unforeseen, unexpected, unusual occurs, which produces the injury." If the result "is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way," the means are not in this category. Lower v. Metropolitan Life Insurance Co., 111 N.J.L. 426. Here, an inference of death by accidental means within this definition is reasonably derivable from the evidence. It is to be presumed, indeed it is conceded, that the deceased intended to reach the nearby shore in safety, and was not in doubt as to his ability to do so; and it ...