On appeal from the Superior Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Wachenfeld, Burling and Ackerson. For reversal -- Justice Heher. The opinion of the court was delivered by Wachenfeld, J.
This is a Superior Court case certified here. It involves the question as to whether or not double indemnity is to be paid on a life insurance policy under its terms.
The pertinent clause provides for payment of double the face amount of the policy "upon receipt of due proof that the death of the Insured occurred * * * directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means."
The policy was in the face amount of $5,000 and named the insured's wife, the plaintiff herein, as the beneficiary. If the
death of the insured was accidental within the terms of the policy, the plaintiff is entitled to recover the additional $5,000 which she seeks.
The evidence is not controverted and consists mainly of the plaintiff's testimony as to what transpired, supplemented by one of her children.
The deceased was a mechanic, 46 years old, weighing 207 pounds, while his wife weighed only 100 pounds. He had been accustomed, over the years, to coming home intoxicated and would then become violently quarrelsome and abusive, on occasions requiring the calling of the police in order to bring the desired tranquility and calm to the domestic scene. Often, in addition to being drunk and aggressive, he beat his wife, and it was no novelty for him to threaten to kill her.
The altercation which resulted in his death was patterned closely after this general picture. He argued with his wife, used violent and indecent language, left the house, returned in a worsened condition, became more abusive, indulged in obscene expostulations and then beat his wife about the face with his fists. The flare-up continued for an hour and the wife was cut, bruised and bleeding. Their five-year-old son remonstrated with his father and was struck. An older son, Howard, endeavoring to protect his mother, was knocked unconscious.
Meanwhile, the wife had run into the living room and was seated on the sofa, holding her one-year-old baby, when the insured entered with a rifle in his hand. He pointed the gun at her. It was an old 22-rifle which had been around the house for years and with which the children had often played. She became apprehensive, not about her own safety but about possible harm to the child. She sprang at the insured, attempting to take the gun away from him, and during the struggle for possession it went off. The insured slumped to the floor and died.
The court below denied a motion for a direction of a verdict for the defendant and submitted the case to the jury, leaving it to them to determine from the evidence whether or not the death occurred within the meaning of the accidental clause
of the policy and also whether the death of the insured was the natural and probable consequence of his own act.
The jury returned a verdict in favor of the plaintiff and the insurance company now appeals, contending the motion made by it for a ...