For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Hall, J.
The issue here is the plaguing one of the meaning of language frequently used in personal insurance policies conditioning the payment of certain benefits upon the sustainment of "bodily injuries effected directly and independently of all other causes through external, violent and accidental means." The contract issued by the defendant was one of insurance upon the life of Edward Salz, an employee of the plaintiff, in which the employer, a trucking concern, was designated as beneficiary. It provided for payment of double the $10,000 face amount in the event death resulted from bodily injuries occasioned in the manner specified by the quoted words.
The factual setting was that of death from a coronary thrombosis, and consequent myocardial infarction, established by autopsy, which was found to have been causally related to the act of picking up some fallen cartons in plaintiff's warehouse. Defendant paid the face amount of the policy
but contended the circumstances were such as to render the double indemnity provision inoperative. This suit seeks recovery of that additional amount. The case was tried in the Law Division without a jury and the court held for the insurer. We certified plaintiff's appeal on application while it was pending in the Appellate Division. R.R. 1:10-1A.
There was no dispute as to the facts of the triggering incident. They were testified to by the only eyewitness, Frank Toth, plaintiff's general manager. He and Mr. Salz went to the concern's place of business on the Saturday morning in question, a non-work day for other employees, to prepare for Monday's work. This was in accordance with their usual custom. Mr. Salz was the company's dispatcher; his duties were mainly clerical and ordinarily did not involve physical effort. After attending to some office work, the two went into the warehouse for a routine inspection tour. What transpired is best described by the exact findings of the trial judge:
"* * * they noticed that a wooden pallet containing cartons of Prestone was out of place and projecting into the aisle in violation of the fire law requirements to keep the merchandise within the lines. The decedent and Toth decided that it should be lined up correctly so as to leave the aisle clear. Toth procured a lift-truck and maneuvered it so as to lift the pallet containing the cartons of Prestone in order to align it properly. After raising the pallet, the lift-truck stalled, jerked and the cartons of Prestone leaned forward and some fell on the floor. Mr. Toth testified that the decedent, Salz, started laughing and hurried over to the fallen cartons. He further testified that they started placing the cartons upright at once, that they hurried to do so because with the cartons upside down, there might be spillage and several cartons might be damaged; that while they were picking up the cartons, the decedent started coughing 'like gasping for breath' and turned white and walked out of the warehouse."
Each carton weighed about 63 pounds and Mr. Salz had picked up seven or eight before the coughing spell. None of the cartons touched him in the course of their fall, he did not instinctively grab for any of them as they fell, nor was
there any evidence that, physically, something unforeseen or involuntary occurred in his movements in picking them up.
Mr. Salz rested on a settee in the office for a time and then drove home, where he lay on a sofa for several hours. He felt much better by late afternoon and subsequently went with his wife to spend the evening at a family gathering. While engaged in a friendly card game there, he complained of distress and collapsed. He was removed to the hospital and died some 16 days later. The medical testimony was in conflict concerning the relation of the coronary thrombosis to the incident in the warehouse. The trial judge found causal connection as a fact and defendant does not contest that conclusion.
The ultimate issue in the case -- whether death had resulted from bodily injury (the thrombosis and infarction) effected through accidental means -- was a mixed question of law and fact. As the underlying basis for deciding it, the court relied upon the oft-quoted interpretation of identical policy language expounded in the leading case of United States Mutual Accident Association v. Barry, 131 U.S. 100, 9 S. Ct. 755, 33 L. Ed. 60 (1889):
"* * * that the term 'accidental' was used in the policy in its ordinary, popular sense, as meaning 'happening by chance; unexpectedly taking place; not according to the usual course of things; or not as expected;' that, if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs which produces the injury, then the injury has resulted through accidental means." (33 L. Ed., at p. 67)
The trial court held that New Jersey followed the Barry thesis of policy meaning as distinct from the view taken in some jurisdictions equating "accidental means" with "accidental result" and found factually that the act of picking up the fallen cartons was voluntary and intentional and "had nothing unforeseen, unusual or unexpected, other than the
resultant injury." The legal conclusion therefore was that the heart injury was not effected by accidental means.*fn1
Plaintiff's main contention on this appeal consists of a frontal attack on the interpretation laid down by Barry. It specifically seeks a holding that "accidental results of voluntarily undertaken acts qualify as accidental means." The argument is that the course of prior New Jersey cases has now actually come to that conclusion, though paying lip service to the viewpoint of Barry, or that, regardless of prior law in this State, the time has arrived for us to espouse the "accidental result" interpretation openly.
Before dealing with the latter theory, a clear understanding should be had of the thought intended to be conveyed by the quotation from Barry. The insured there was a physician who had gone with two other doctors to visit a patient living in a house behind a drug store. The visit concluded, the three wished to go into the store by a rear entrance, which was most quickly reached by jumping from a platform upon which the door of the house opened. The distance from the platform to the ground was between four and five feet. The other physicians jumped first and alighted without mishap. The insured landed heavily, apparently on his heels. He soon
became ill and died a few days later, allegedly from a stricture of the duodenum caused by the manner of his landing from the jump. There was evidence from which the jury might have inferred that he had alighted in a manner not intended, causing a jar or shock of unexpected severity.
The beneficiary's suit on a policy of accident insurance was tried before a jury in the federal court under its diversity jurisdiction in the days when so-called federal common law was in force. In addition to the sharply disputed questions of whether any injury was sustained from the jump and whether such proximately caused death, there was submitted for jury determination, if findings on the other questions were affirmative, the matter of whether the injury was effected "through external, violent and accidental means." This submission was on the basis of an instruction legally interpreting the policy clause as summarized in the quotation above and posing the factual issue arising therefrom in this language:
"And I instruct you that if Dr. Barry jumped from the platform and alighted on the ground in the way he intended to do, and nothing unforeseen, unexpected, or involuntary occurred, changing or affecting the downward movement of his body as he expected, or would naturally expect, such a movement to be made, or causing him to strike the ground in any different way or position from that which he anticipated or would naturally anticipate, then any resulting injury was not effected through any accidental means. [But if, in jumping or alighting on the ground, there occurred, from any cause, any unforeseen or involuntary movement, turn, or strain of the body, which brought about the alleged injury, or if there occurred any unforeseen circumstance which interfered with or changed such a downward movement as he expected to make, or as it would be natural to expect, under such circumstances, and as caused him to alight on the ground in a different position or way from that which he intended or expected, and injury thereby resulted, then the injury would be attributable to accidental means.]" (9 S. Ct., at p. 759, 33 L. Ed., at p. 64)
The jury returned a general verdict for the plaintiff and the judgment was affirmed by the United States Supreme Court. It approved the trial judge's instructions and concluded the jury could find from all the evidence that something occurred "accidental, unforeseen, involuntary, unexpected,
in the act of jumping, from the time the deceased left the platform until he alighted on the ground. * * *" 9 S. Ct., at p. 759, 33 L. Ed., at p. 67.
The judicial writing most often referred to as articulating the "accidental result" theory of interpretation -- and plaintiff bottoms its argument upon it -- is the dissenting opinion of Justice Cardozo in Landress v. Phoenix Mutual Life Insurance Co., 291 U.S. 491, 54 S. Ct. 461, 78 L. Ed. 934 (1934). This was also a federal common law diversity suit upon insurance contracts containing benefit provisions practically identical with that before us. Neither Landress nor Barry is, of course, binding upon state courts or, for that matter, on federal courts since Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, (1938), but the opinions in the two cases have served throughout the years as influential and convenient foundations for any viewpoint a court determines to apply to a particular case in this difficult and conflicting field.
Landress arose on the sufficiency of the complaint, which alleged, in effect, that the insured was playing golf on an ordinary summer day, a customary activity, and that he was suddenly and unexpectedly overcome by the force of the sun's rays, from which he shortly died. The Supreme Court affirmed the dismissal of the complaint on demurrer because it did not allege death resulting from bodily injuries effected through accidental means.
The opinion of Chief Justice Stone, speaking for eight Justices, relied upon the approach of Barry. The plaintiff had argued that the result had been accidental in the common or popular sense of the term, even though transpiring from voluntary exposure, and should therefore be within the policy coverage as effected through accidental means. The court replied:
"But it is not enough, to establish liability under these clauses, that the death or injury was accidental in the understanding of the average man -- that the result of the exposure 'was something unforeseen, unsuspected, extraordinary, an unlooked for mishap, and so an
accident,' * * * -- for here the carefully chosen words defining liability distinguish between the result and the external means which produces it. The insurance is not against an accidental result. The stipulated payments are to be made only if the bodily injury, though unforeseen, is effected by means which are external and accidental." (291 U.S., at pp. 495-496, 54 S. Ct., at p. 462, 78 L. Ed., at p. 936)
The court tacitly recognized, however, both the difficulties which arise from the application of any rigid rule to the infinite variety of factual situations which present themselves in accident insurance cases and the common judicial technique of categorizing those situations for decision -- a practice to which we shall advert later on -- by going on to say:
"We do not intimate that injuries resulting from as impalpable a cause as the inadvertent introduction into the body of noxious germs may not be deemed to be effected by external accidental means. * * * Nor do we say that in other circumstances an unforeseen and hence accidental result may not give rise to the inference that the external means was also accidental."
(In support of the first statement, the court cited Western Commercial Travelers' Ass'n v. Smith, 85 F. 401, 40 L.R.A. 653 (8 Cir. 1898), hereafter further referred to.) But it could find no such inference in a voluntary exposure to the sun's rays "with no indication that some unforeseen or unintended condition or combination of circumstances, external to the state of the victim's body, contributed to the accidental result." 291 U.S., at pp. 496-497, 54 S. Ct., at p. 462, 78 L. Ed., at pp. 936-937. This conclusion was buttressed by the court's canvass of the authorities which were said generally to hold that sunstroke resulting from voluntary exposure was not effected by accidental means.
Justice Cardozo in his dissent stated that he would test coverage, not by consideration of the means producing the result, but by viewing the result, which, if accidental, would automatically impart that quality to the cause. In developing this viewpoint, he first suggested that an attempted distinction between accidental means and accidental result was quite impossible -- it "will plunge this branch of the law into
a Serbonian Bog." He then proceeded to lay down the broad criterion that the meaning of policy language be that attributed to it by the average man who takes out a contract of accident insurance. "It is his reading of the policy that is to be accepted as our guide, with the help of the established rule that ambiguities and uncertainties are to be resolved against the company. * * * The proposed distinction will not survive the application of that test." Therefore he said, "[w]hen a man has died in such a way that his death is spoken of as an accident, he has died because of an accident, and hence by accidental means. * * * If there was no accident in the means, there was none in the result, for the two were inseparable. * * * There was an accident throughout, or there was no accident at all." 291 U.S., at pp. 499, ...