On appeal from Superior Court, Law Division, Essex County.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling and Ackerson. For affirmance -- Justices Case and Oliphant. The opinion of the court was delivered by Ackerson, J.
Plaintiff appealed to the Appellate Division of the Superior Court from an adverse judgment entered on a verdict of no cause of action found by the trial judge, sitting without a jury, in the Law Division of that court, and the appeal, while pending below, was certified here on our own motion.
The action was to recover on an insurance policy issued by the defendant to plaintiff's husband, Alex Korfin, in which plaintiff was the named beneficiary. The policy provided, inter alia, as follows:
"This policy provides indemnity for loss of life resulting from nonoccupational bodily injury effected through accidental means * * *."
"'Injury' as used in this policy means bodily injury which is the sole cause of the loss and which is effected solely through accidental means while this policy is in force."
The facts are not in dispute and come before us in the form of an "Agreed Statement in Lieu of Record" pursuant to Rules 4:2-6 and 1:2-22, in which statement appear the following pertinent facts: "On April 21, 1947, the insured voluntarily and on his own initiative made and kept an appointment and was vaccinated by his family physician, Dr. Harry Friedman, with a vaccine for the prevention of smallpox. His death ensued eleven days thereafter, and it is agreed that the cause of the decedent's death was 'post vaccinal encephalitis' as confirmed by the autopsical findings of Dr. Harrison S. Martland, Essex County Medical Examiner." The insured died on May 2, 1947, eleven days after the vaccination.
Encephalitis is defined as "inflammation of the brain" and post vaccinal encephalitis as "an acute form of encephalitis which sometimes follows the administration of vaccine" (Maloy's Medical Dictionary for Lawyers, p. 181). At the oral argument of this appeal it was agreed by counsel for each party that the encephalitis which caused the insured's death was produced by the vaccine used in his vaccination.
On this state of facts the trial court concluded that the insured's death was not a compensable loss within the purview of the policy because death was not caused by "accidental means" and judgment was thereupon entered in favor of the defendant which judgment is the subject of this appeal.
Two questions are presented: (a) was the appeal taken within time under Rules 4:2-5 and 1:2-5 which require appeals to be taken in a case such as this within 45 days after the entry of judgment, and (b) was the death which ensued after the vaccination "effected solely through accidental means" within the meaning of the policy?
Proceeding in limine to consider the first question, we note that the judgment was entered ...