This action was tried to the court without a jury.
Plaintiff is the named beneficiary in two policies of life insurance issued by defendant upon the life of plaintiff's son, William E. Furr. William died on July 15, 1967. Each policy contains a provision for an additional payment in the event of accidental death of the insured. Defendant has
paid the ordinary death benefits provided by the policies but not the accidental death benefits. Plaintiff claims that she is also entitled to these benefits, amounting to a total of $1,970 on the two policies. Defendant denies liability. The issue in the case is whether decedent's death resulted from bodily injuries caused by accidental means within the meaning of the double indemnity provision of each policy.
At the trial the policies and the insured's death certificate were introduced into evidence. Plaintiff testified to her relationship to the insured, to the fact that he was absent from home for two days prior to his death, and that he died on the date stated. Defendant presented the testimony of a Newark policeman and some photographs of decedent and of the locale of his death which were published in a magazine.
Patrolman Parisi of the Newark Police Department testified that on July 13, 14 and 15, 1967 there was extensive rioting and looting in the city, especially in the 4th and 5th precincts. There were numerous fires of suspicious origin. Firemen and policemen were stoned and shot at. In addition to working as a detective, Parisi was assigned to riot duty. He worked for more than 24 hours without going off duty.
On the afternoon of Saturday, July 15, 1967, Parisi was driving a well marked black and white police car under the direction of Sergeant O'Connor, who was seated in the right front seat. Patrolman Scarpone was in the rear seat of the car. All three were in uniform and equipped with shotguns. Scarpone pointed his gun out of a rear side window of the car. At about 2:25 P.M. these officers were directed by radio to go to a liquor store at 125 Avon Avenue reportedly being looted. They promptly followed instructions. As the police arrived at the store they noted that it was damaged and saw the insured leaving the store with a package in his hands. They drove along the sidewalk next to Furr. The officers called to Furr to stand still. He looked directly at the police and at the shotgun
protruding from the police car pointing in his direction but did not stop. He ran, carrying the package which was later discovered to be a six-pack of beer. The police fired warning shots, but Furr continued to run. The police intentionally shot him to prevent his escape. He died of the wounds.
The identical policy provisions in issue read in part as follows:
Upon receipt of due proof that the death of the Insured resulted, directly and independently of all other causes, from bodily injuries caused solely by external, violent, and accidental means, the Company will pay, as an additional death benefit, an amount equal to the amount payable under the Schedule. * * * Such benefit shall not be payable if the Insured's death * * * (4) is the result of participating in or attempting to commit an assault * * *.
No illegal acts of the insured result in loss of the accidental death benefits under the words of the policies except ...