
    John Larkin, as Receiver of the Property of Ellen A. Nafis, Respondent, v. The Inter-State Casualty Company of New York, Appellant.
    
      Insurance against injuries from “ external, violent and accidental means ”—burden of proof in an action thereon.
    
    In an action upon a policy of insurance “against bodily injuries, sustained through external, violent and accidental means if death results from such injuries within ninety days therefrom, independently of all other causes,” the burden is upon the plaintiff to produce sufficient circumstantial or other evideuce to justify a fair and reasonable, inference to the effect that the death resulted from éxternal, violent and accidental means.
    
      In an action upon such a policy, evidence was given that the insured left his home after breakfast an'd returned about ten o’clock, telling a servant that he did not feel well, that he was dizzy and was going to lie down; that the servant brought him a cup of tea and assisted him to take a gas stove into his room, which was the occasion on which he was last seen alive; that about twelve o’clock his wife found him in the room, lying dead on the floor (which was of polished hard wood and had been wiped with a damp cloth just before the insured entered), with his head resting upon the fender and a displaced rug at his feet. Medical experts examined on behalf of the plaintiff testified that the insured was in a state of general good health; that there was blood on the fender and about the nose of the insured, and a bruise at the base of his neck, and some of them stated that death might have been and was, in their opinion, caused by a fall and concussion of the brain.
    
      Held, that the evidence was sufficient to justify the jury in finding that death resulted from external, violent and accidental means and not from vertigo, from which disease there was no evidence that' the insured had ever suffered.
    Appeal by the defendant, The Inter-State Casualty Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of "the county of Kings on the 2d day of March,- 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of February, 1899, denying, the defendant’s motion for a new trial made upon the minutes.
    
      William B. Hornblower, for the appellant.
    
      George C. Case, for the respondent.
   Goodrich, P. J.:

The defendant insured one William H. Nafis “ against bodily injuries, sustained through external, violent and accidental meáns, .as follows : First. If death results from such injuries within ninety days therefrom, independently of all other causes, the company will pay,” etc. Nafis died on October 9, 1896, and the manner and cause of his death gives rise to this controversy. The plaintiff insists that it was occasioned by a fall, independently of any disease or bodily infirmity of Nafis, while the defendant contends that the deceased had vertigo resulting in the fall which occasioned the death, and for which it is not liable in damages.

It is elementary, and the court charged, that the burden of proof was upon the plaintiff to establish that the death resulted from external, violent and accidental means, and not from vertigo or bodily disease. (Whitlatch v. Fidelity & Casualty Co., 149 N. Y. 45.) But it does not follow that there must be direct and positive evidence on the subject. The simple question in cases of this kind, as in this-case, is whether there was circumstantial or other evidence sufficient to justify a fair and reasonable inference that the death resulted from external, violent and accidental means. (Preferred Acc. Ins. Co. of New York v. Barker, 93 Fed. Rep. 158.)

In Landon v. The Preferred Ins. Co. of New York (post, p. 487) there is a summary of cases of the same character in which, although as in the present case there was no direct and positive evidence as to the cause of death, judgments in favor of the assured were affirmed. This decision renders unnecessary an examination of these authorities.

It becomes necessary, however, to analyze the evidence to ascertain whether there was sufficient to justify the submission of the issue to the jury. Nafis was a lawyer living in Brooklyn. On the day of his death he ate a hearty breakfast, after which he left the house in company with his son with whom he arranged for an afternoon drive. He visited a market, as was his usual custom, and then went to look at some apartment property. He returned to his home soon after ten o’clock, telling a servant that he did not feel well; that he was dizzy or had a dizzy headache and was going to lie down and take a rest. He told the servant to bring him a cup of tea and to assist him to take a gas Stove into the room, both of which she did. This was the last time he was seen alive.

Mrs. Natis left the house subsequently to her husband’s departure and returned about twelve o’clock, when she found him lying dead on the floor. His head was resting on the bar of the fender and his , body straight out towards the alcove at the other side of the room. There was a rug on the floor, pushed away from his feet. The floor was of polished hard wood, uncarpeted, and had been wiped with a damp cloth just before Nafis went into the room. There was a pillow on the lounge, and on the other end of the latter or lying on' the floor by it a rubber bag of warm water.

There was evidence tending to show that the deceased was in a state of general good health. There was no direct proof that his fall was caused by vertigo. The fact that the floor was of polished hard wood and that a rug was displaced at his feet, although slight evidence, is sufficient in the absence of any contradiction to justify the conclusion that the fall was occasioned either by his slipping on the floor or by the slipping of the rug as he stepped upon it. It seems to me that this evidence is as strong as was the evidence in the cases already cited, where the appellate courts sustained judgments for the plaintiffs.

If there had been any evidence that Nafis had ever fallen from dizziness or vertigo, there would have been plausibility in the contention that the plaintiff must positively negative the inference that Nafis fell on this occasion from a similar cause, but, on the contrary, there is evidence,' though slight, that he had never fallen from such a cause.

This brings us to a consideration of the expert medical testimony. Dr. Edson, who had been the family physician for twelve or fifteen •years, testified that he had never attended the deceased for vertigo or chronic disease of any kind. He saw the body shortly after it was found, and saw blood about the nose. Afterward, he and Dr. Van Oott, another jfliysician, on the' part of the family, and two physicians, Drs. Thatcher and Clarkson, on the part of the defendant, performed an autopsy. Dr. Edson says that the déceased was essentially healthy throughout,” but that he could not state the cause, of his death. Dr. Van Cott. found a bruise on the neck, above the large vertebrae at the base of the neck, with sedulation or hemorrhage, and in answer to hypothetical questions, which fairly set out the conditions shown by the evidence, testified that • death might have been, and in his opinion was, caused by a fall and concussion of the brain and shock. This opinion was corroborated by another medical witness. Dr. Nafis, son of the deceased, testified to seeing a depression in the muscles at the back, of the neck, and a dark bruise lower down under the collar button, which was dented on both sides and bent together. He also saw blood on the' fender. The defendant’s expert, Dr. Thatcher,-who assisted at the autopsy, testified that he found no evidence of death by violence or external cause, saying : My conclusion was that it was impossible to. stajp positively, but that in my opinion it was altogether probable, that ■ he died from naturabcauses,” and, in his opinion, not from external violence or accidental causes. He also very fairly stated that lie;did. not know the cause o'f the death, but that he found indications of. disease of the kidneys, sufficient to have caused the death, and that the deceased had nephritis, commonly known as Bright’s disease. He also said that, generally, an examination of the urine would disclose Bright’s disease, if it existed. Drs. Biggs and Delatour, called by the defendant as experts, stated that the medical report of the autopsy, which was handed to them, did not contain sufficient information to indicate that the death resulted from accidental, violent or external means.

. On the rebuttal, the son of the deceased, Dr. Natis, testified that he had made several examinations of his father’s urine by the usual tests, and found it that of a man perfectly healthy in that respect. This evidence was uncontradicted and sufficient to justify the jury in believing that the deceased did not have Bright’s disease, and it effectually disposed of the defendant’s contention that the deceased had vertigo from that cause and that his death resulted therefrom.

We are thus brought again to the question whether, even without disregarding the expert medical testimony of both parties as to the presence of Bright’s disease, there was evidence sufficient to justify a fair and reasonable inference that the death resulted from external, violent and accidental means and not from vertigo; and we are clearly of opinion that the question was properly submitted to the jury and that the verdict was justifiable on the evidence.

There are no exceptions in the record, to which it is necessary to refer, other than those involved in the foregoing discussion, and the judgment should be affirmed.

All concurred.

Judgment and order affirmed, with costs.  