On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Jacobs and Brennan. For reversal -- Justices Heher and Burling. The opinion of the court was delivered by Wachenfeld, J. Heher, J., dissenting. Burling, J., joins in this dissent.
[14 NJ Page 310] The respondent, the Equitable Life Assurance Society of the United States, issued a policy of insurance on the life of Konstanten Zarecky in the sum of $3,000, wherein the appellant was named as beneficiary. Amongst other things, it provided that in the event the
insured met his death "directly and exclusively by external, violent and purely accidental means," the company would pay an additional $3,000.
The contract further stipulated that no payment would be made for the additional amount "for any loss resulting from * * * self-destruction or self-inflicted injury."
On November 29, 1951, while the policy was in effect, the assured was struck and killed by a train on the Pennsylvania Railroad at Howe Lane, North Brunswick Township.
The appellant sought the amount of the policy and an equal amount as additional double indemnity. The insurer paid the face amount of the contract but refused double indemnity, asserting the assured's death was not accidental but suicidal.
The deceased worked at the Mack Manufacturing Company doing heavy work in the casting department. After the death of his first wife he remarried, but shortly separated from his second wife due to his heavy drinking. He had been operated on for a gall bladder condition and had not worked for six months prior to his death. He received unemployment compensation from the company but apparently was in debt to a considerable extent, indicated by the fact that he owed his landlord three months' rent. He lived alone and the night before his death voiced his apprehension about his health, broke down and cried, and was despondent and worried about his future. He borrowed $1 so he could see his doctor and lamented the fact that he had no money and no place to go.
There was a path leading to the tracks where the deceased was struck by an eastbound train on the main line of the Pennsylvania Railroad Company going 80 miles an hour.
The only eye witness was the train engineer, who testified the insured walked rapidly up the embankment of the tracks when the train was 700 feet away, that the warning horn was blowing continuously but the deceased paid no attention to it. He walked without hesitation until he stopped in the middle of the tracks and was down on his hands and knees facing the train when he was struck.
His hearing was good; it was a clear day and visibility was at least half a mile in the direction the train was approaching. His body was retrieved in "little pieces" and was identified by a thumb and a few fingers.
At the close of the case, each side moved for a directed verdict in its favor, the defendant urging the evidence showed the deceased committed suicide, while the plaintiff insisted it proved the decedent ...