Foley, Lewis and Herbert. The opinion of the court was delivered by Lewis, J.A.D.
[68 NJSuper Page 374] Plaintiff sought recovery under the double indemnity provisions of a life insurance policy. Judgment of dismissal, on motion of defendant, was granted at the close of the case. Plaintiff appeals to this court, and urges that the trial judge erred (1) in denying plaintiff's
motion for judgment, and (2) in granting defendant's motion for judgment.
The pertinent contract terms in the double indemnity section of the insurance policy read:
"ACCIDENTAL DEATH BENEFIT -- Upon receipt of due proof that the Insured * * * sustained accidental bodily injury, of which, except in the case of drowning or of internal injuries revealed by an autopsy, there is a visible contusion or wound on the exterior of the body, occurring after the date of the Policy, and resulting in the death of the Insured * * *
No Accidental Death Benefit will be paid if the death of the Insured results wholly or in part from one or more of the following causes: * * * (b) committing or attempting to commit, or participating in an assault or felony; * * * (h) injuries intentionally inflicted on the Insured by any person, while sane or insane; * * *."
The facts are not in dispute. The defendant, Washington National Insurance Company, issued its policy number 06319818, in the face amount of $500, insuring the life of Robert Burney, Jr. This policy was in effect on August 4, 1958, the date on which the insured died from a pulmonary hemorrhage caused by a bullet wound. Mattie Burney (also known as Mattie Mae Coley), the mother of Robert, plaintiff herein, was the designated beneficiary. The insurance company delivered to the plaintiff a check for the principal amount of the policy, but declined to recognize an obligation under the double indemnity provisions of their contract until "after it was proved out when the trial came off it was accidental death." On the reverse side of the check, above plaintiff's mark, which was witnessed by an employee of the undertaker, was a printed form of release. Plaintiff testified that she could not read or write. We need not consider the testimony or the arguments of plaintiff in her brief that this release was a nullity and void at law. This point was not argued on appeal and counsel for the insurance company in its brief took the position that "defendant does not argue the efficacy of the release to bind the plaintiff herein."
At the trial, the plaintiff offered only her own testimony as to the circumstances surrounding the death of Robert Burney, Jr., and, under direct examination, testified that she was not present when her son was killed. Under cross-examination, it was developed that Mrs. Burney, on the evening of August 4, 1958 had been struck by her son-in-law, Eugene Jackson. Later the same evening, she related this happening to her daughter, the wife of Jackson; this conversation took place in the yard of the Burney home. Decedent had not been present at the time of the alleged assault and battery upon his mother. When, however, his mother reported the incident to her daughter, he was on the porch. After the daughter had left the premises, decedent, without a word to anyone, walked away from the porch. Within a few minutes thereafter, plaintiff heard a pistol report from the street and heard her daughter scream. She ran out of the house, and found her daughter wounded by a bullet, in the left side, and prostrate on the road. She passed her son-in-law, who was running from the direction of the daughter toward plaintiff's home; she did not know if her son-in-law had a pistol, but testified, "I guess he did. He had done shot her." Plaintiff did not witness the slaying of her son, and had no personal knowledge of the way in which he met his death except that he was shot and died as a result of a bullet wound -- "He was between where my daughter was shot and where I met my son-in-law at." It was also elicited from the plaintiff that she had a gun but did not know if the daughter had taken the gun on August 4, 1958.
The court reserved its decision on defendant's motion to dismiss which was made at the conclusion of plaintiff's case, and "simultaneously therewith or immediately thereafter offered the plaintiff the opportunity of reopening for the purpose of showing more of the existing facts which surrounded the happening, and plaintiff relied upon the Magich case, particularly the last sentence in paragraphs (1-5) of the opinion." The evidence proffered by the defense consisted
solely of proof that plaintiff had endorsed, by her mark, the check which bore the printed form of release above her endorsement. Cross-motions for judgment were made and considered. Plaintiff's motion was denied. The court then granted the ...