
    Marcia E. Peck, Resp’t, v. The Equitable Accident Association of Binghamton, N. Y., App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed May 12, 1889.)
    
    1. Insurance (life)—Evidence—Sole and proximate cause of death— When established.
    This action was upon a policy of insurance against accident, issued to one Peck, by defendant. It, among other things, provided that defendant would pay to plaintiff a sum not exceeding $5,000, realized upon an assessment, within sixty days after satisfactory proof that Peck had, while a member, sustained injuries through external, violent and accidental means, and that such injuries alone occasioned death within ninety days from the happening thereof. Among the conditions, made a part of the policy, were the following: “That benefits under this certificate shall not extend * * * to any death or disability which majr have been caused, wholly or in part, by bodily infirmities or disease existing prior, or subsequent, to the date of this certificate, * * * nor to any case, except where the injury is the proximate and sole cause of the disability or death, * * * and these benefits shall not be held to extend * * * to any cause of death or personal injury, unless the claimant under this certificate shall establish, by direct and positive proof, that the death or personal injury was caused by external violence and accidental means, and was not the result of design either on the part of the member or of any other person.” On March 24, 1887, and within the life of the certificate, the arm of Peck was broken, in what manner did not appear. In a day or so he was attacked with severe pains in his chest and lungs, and on April 12, 1887, he died. Plaintiff’s evidence tended to show that death was caused by embolism or thrombus, the direct result of his arm being broken, while defendant’s evidence tended to show that death was caused by pneumonia. Held, that the evidence was sufficient to justify the finding that the fracture of decedent’s arm alone caused his death: that it was the sole and proximate cause.
    3. Same—Death caused by extebnal violence—What pbcoe oe.
    
      Held, that the requirement of the certificate as to direct and positive proof did not make it necessary that plaintiff should establish the fact and attendant circumstances of decedent’s injury, by persons who were actually present when the injury occurred; that the proof given of its nature and character established the fact that it was caused by external violence.
    3. Same—When action maintainable.
    
      Held, that plaintiff could maintain the action in its present form.
    Appeal from a judgment entered in Onondaga county upon the decision of the court, after trial by the court without a jury. The action was upon a certificate of membership, issued to one Ira Peck by the defendant, which was in the nature of a policy of insurance against accident. It, among other things, provided that the defendant would pay, at its office in Binghamton, N. Y., to the plaintiff, the principal sum, not exceeding $5,000, realized upon an assessment in accordance with the provisions of its by-laws, within sixty days after due and satisfactory proof should be filed with its secretary, that said Peck had, while a member, sustained injuries effected through external, violent and accidental means, and such injuries alone had occasioned death within ninety days from the happening thereof. It also provided that such certificate was issued and accepted subject to the conditions, provisions, limitations and exceptions therein contained or referred to, together with the classification of hazards embraced therein, and all of the provisions of the rules, regulations and by-laws of the defendant which were made a part of the contract between the parties.
    Among the conditions which were made a part of such certificate or policy were the following:
    “That benefits under this certificate shall not extend * * * to any death or disability which may have been caused wholly or in part by bodily infirmities or disease existing prior or subsequent to the date of this certificate * nor to any case, except where the injury is the proximate and sole cause of the disability or death * * * and these benefits shall not be held to extend * * * to any cause of death or personal injury, unless the claimant under this certificate shall establish by direct and positive proof, that the death or personal injury was caused by external violence and accidental means, and was not the result of design either on the part the member or of any other person.”
    The defense consisted of denials of the complaint, and allegations that the assured falsely represented his age; that his death was caused wholly or partly by bodily infirmities, or by disease existing prior or subsequent to the date of the certificate; that the alleged injury was not the sole or proximate cause of his death; and that the proper proofs of the injury were not furnished as required by the policy.
    On Thursday, March 24, 1887, and within the life of this certificate, the arm of the said Ira Peck was broken. How, in what manner, under what circumstances, or at what place he was at the time it was broken, does not appear. At seven or eight o’clock, p. M., on that day, he was in front of the Vanderbilt House, in the city of Syracuse. At eleven or twelve o’clock of the same day, lie was at his rooms in that city with his arm broken. The fracture was reduced. On the following Tuesday he was taken quite suddenly with severe pains in his chest and lungs. From this he was relieved, and was convalescent for a week or ten days, when he was again attacked in a manner similar to the first, and from that time he gradually grew worse until April 12, 1887, when he died.
    The evidence introduced by the plaintiff tended to show that the cause of his death was embolism or thrombus, which was the direct result of his arm being broken, while the evidence of the defendant tended to show that his death was caused by pneumonia, and that the breaking of his arm was not the cause of his death.
    Upon this evidence the trial court found, “ that the said Ira Peck, on the 24th day of March, 1887, met with an accident whereby his arm was fractured, and thereby sustained bodily injuries effected through external, violent and accidental means within the intent and meaning of said contract of insurance, and the conditions thereto annexed; that thereafter, and while said contract and policy of insurance was in full force and effect, said Ira Peck died, at Syracuse, FT. Y., on the 12th day of April, 1887, and that said bodily injuries sustained by said Ira Peck, aforesaid, directly produced a disease of the lungs, called by the physicians pneumonia, thrombus and embolism, respectively, from which he died; and the said accident, therefore, alone occasioned the death of said Ira Peck, within ninety days from the happening of the same.” It also found that if an assessment had been levied as provided by such policy, it would have produced at least five thousand dollars, and that the plaintiff was entitled to a judgment for five thousand dollars,. with interest thereon, from August 1, 1887, together with the costs of this action.
    
      O. W. Chapman, for app’lt; W. G. Tracy, for resp’t.
   Martin, J.

The questions chiefly litigated on the trial, and the only questions presented for our consideration on the argument of this appeal were:

First. Whether the decedent’s injury was the proximate' and sole cause of his death.

Second. Whether the fact that the decedent’s death or injury was caused by external violence and accidental means was established by direct and positive proof, within the intent and meaning of the policy.

Third. Whether this decedent made false statements as to his age.

Fourth. Whether the action could be maintained in its present form.

We are of the opinion that the evidence was sufficient to justify the trial court in finding that the fracture of decedent’s arm alone caused his death, and that it was the sole and proximate cause thereof. McCarthy v. Travelers’ Ins. Co., 8 Biss., 362; Barry v. U. S. Mutual Accident Ass., 23 Red. Rep., 712; National Benefit Association of Indianapolis v. Grauman, 107 Ind., 288.

It must be admitted that there was no evidence by any witness who saw the decedent when he was injured as to the particular manner in which his injury was caused. But the requirement of this certificate as to direct and positive proof did not make it necessary that the plaintiff should establish the fact and attendant circumstances of the decedent’s injury by persons who were actually present when the injury occurred. The fact that the injury was caused by external violence was directly and positively established "by the proof given of the nature and character of his injury. We think the presumption, if any, was that his injury was caused by accidental means rather than that it was the result of design, either on the part of the deced-ent, or of any other person. It was not to be presumed that his injury was self-inflicted, nor that it was intentionally inflicted by any other person. The evidence was sufficient to justify the trial court in finding that the injury sustained was caused by accidental means. But the more difficult question is, whether it was established by such direct and positive proof as the certificate required. While this question is not free from doubt, still we are inclined to the opinion that the proof was sufficiently direct and positive to answer the requirements of the certificate. Travelers’ Ins. Co. v. McConkey, 127 U. S., 661-666; Mallory v. Travelers’ Ins. Co., 47 N. Y., 62.

There was not sufficient evidence that the decedent made any false statement as to his age to defeat the recovery in this action, and the court properly so held.

That the plaintiff could maintain this action in its present form seems to be established by the cases of Freeman v. National Benefit Society of New York, 42 Hun, 252; 5 N. Y. State Rep., 82; Fulmer v. Union Mut. Ass., 12 id., 347; Hankinson v. Page, 12 Civ. Pro. Rep., 279, 288; O’Brien v. Nome Benefit Society of N. Y., 21 N. Y. State Rep., 640, 643.

These considerations have led us to the conclusion that the judgment appealed from should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.  