Goldmann, Freund and Foley. The opinion of the court was delivered by Foley, J.A.D.
Plaintiff appeals from a judgment non obstante veredicto entered pursuant to R.R. 4:51-2, on the ground that plaintiff's proofs failed to establish a claim for relief as a matter of law.
The action was brought to recover the proceeds of an accident insurance policy issued by defendant to plaintiff's deceased husband. The policy contained a death benefit of $10,000, for which an annual premium of $31 was paid, and insured the deceased:
"against loss resulting directly and independently of all other causes from accidental bodily injuries sustained during the term of this policy (herein called 'such injuries'), as follows:
Coverage 3. * * * if such injuries within ninety days from the date of accident shall result in the death of the Insured, the Company will pay the principal sum as hereinbefore specified.
This policy does not cover any accident or loss caused or contributed to by * * *
(3) disease, or medical or surgical treatment therefor, or bacterial infections (except pus-forming infections occurring through an accidental cut or wound). * * *" (Emphasis added)
On April 17, 1958 decedent, while driving his automobile, was involved in a minor traffic accident with a car driven by one Albert W. Tallaksen. He suffered no physical bodily injuries as a result thereof. Immediately after the occurrence the parties commenced exchanging licenses and other pertinent information. Meanwhile, Tallaksen's father, Herbert Tallaksen, who had been following his son in another automobile, and Thomas R. Bruce, a passerby, joined the parties. When decedent declined to furnish the name of his insurer, Herbert Tallaksen told Albert to telephone the police. Albert proceeded to a nearby restaurant to comply with his father's instructions. Bruce testified:
"[W]hen they were exchanging licenses he [decedent] seemed to be all right, he was calm and everything, and everything was going all right. But the minute Mr. Tallaksen asked him for the insurance company he started getting worked up.
[H]e started to get sort of nervous, excited like."
This witness said also that after Albert Tallaksen entered the restaurant to make the telephone call decedent "took out his wallet and he showed this Mr. [Herbert] Tallaksen the insurance company. * * * And he [Herbert] called the son out of the restaurant." By this time decedent and Herbert Tallaksen had walked to the sidewalk. Bruce continued:
"And then after that was over Mr. Tomaiuoli was shaking, and he stepped from the curb, he took one step off the curb, and then for no reason at all he turned around to go back, but he only took another step and he fell forward.
So his glasses broke, and then he laid face down on the sidewalk, and his arm was outstretched with his wallet in it, and the blood was forming under his nose, under his head, and it was coming out."
Herbert Tallaksen's account of this sequence of events was substantially the same as that given by Bruce.
Decedent, then 72 years of age, was dead when the ambulance arrived. The death certificate signed by Doctor Noah Meyerson gave "Arterioclerotic [ sic ] heart disease" as the cause of death. No autopsy was performed.
The sole issue in the case, as defined in the pretrial order and restated by the trial court in its charge to the jury, was:
"Did the policy involved cover loss of decedent's life under the facts and circumstances involved?"
Before proceeding further we deem it highly important to point out that when, in the course of the trial, the attorney for plaintiff was asked to specify "which accident" he relied upon as the cause of death (reference presumably being made to the automobile collision and to decedent's fall), the attorney said that he relied "strictly" on the automobile accident, "it is the only accident I am using." (Emphasis added.) The case proceeded to judgment on this theory of accident and is now argued before us on the same theory.
To establish her claim, plaintiff relied largely upon the testimony of Doctor Alfred Yager, an internist. Decedent had been Doctor Yager's patient for approximately three years prior to his death. Originally, he had come under the doctor's care at the instance of decedent's brother Dr.
Tomaiuoli, a surgeon, who had detected sugar in decedent's urine. Then, or shortly thereafter, decedent developed some difficulty in urination and was referred to a urologist, who examined him cystoscopically. This procedure was complicated by fever, referable to an infection which resulted from the instrumentation, and led to the patient's hospitalization. Doctor Yager made daily checkups of decedent during the hospital confinement and found that although his heart "was no problem at the time of this hospitalization," the man had "arteriosclerotic heart disease." Thereafter, decedent called at Doctor Yager's office for routine checkups about once every three months. The doctor noted no significant changes in the arteriosclerotic heart disease, nor in a condition of diabetes from which decedent was also suffering, but he gave him routine precautionary instructions relating to his limiting the physical effort involved in operating an automobile and climbing steps, appropriate to the activities of a man of decedent's age who has diabetes and arteriosclerotic heart disease.
On direct examination the doctor was presented a hypothesis which fairly set forth the facts recited above, and then:
"Q. Now, Doctor, the automobile accident and its events and effects acting upon an imperfect state of health, would that have been the proximate cause of death?
A. I would have to say there is a strong probability that would be the cause of death.
Q. Doctor, did the accident bring about the condition from which death resulted, taking into consideration that the injured was previously ill or aged -- I am sorry. That the insured was, that is, Mr. Tomaiuoli was previously ill or aged?
A. Would you repeat that question?
Q. Yes, I'll repeat it. Did the accident bring about the conditions from which death results, taking into consideration that Mr. ...