
    Edwin S. Morgan, Respondent, v. Indemnity Insurance Company of North America, Appellant.
    First Department,
    November 28, 1949.
    
      Dennis L. O’Connor of counsel (George A. Garvey, attorney), for appellant.
    
      Jacob Freed Adelman of counsel (William F„ Walsh with him on the brief; Walsh and Levine, attorneys), for respondent.
   Cohn, J.

The policy of insurance in this case provides for payment to the beneficiary for accidental death of the insured “ resulting directly and independently of all other causes from bodily injuries sustained * * * and effected solely through accidental means ”.

An unintentional fatal overdose of a sleeping potion may constitute accidental death (Mansbacher v. Prudential Ins. Co., 273 N. Y. 140). However, it is now settled that a state of acute alcoholism which results in death is not one caused by accidental means (Powley v. Equitable Life Assur. Soc., 257 App. Div. 324, affd. 284 N. Y. 664). In that case this court said (G-lennon, J.) at page 326: “ Where, as in this case, an assured consumes an amount of alcohol sufficient to cause acute alcoholism and dies as a result thereof, we are of the opinion that the death does not occur through accident means ’ or ‘ by means of an accident.’ ”

To sustain a recovery under the terms of the insurance contract plaintiff was required to establish, as he alleged in his complaint, that death of decedent was due solely and exclusively to barbiturate poisoning. This plaintiff did not do.

Evidence adduced on behalf of plaintiff unequivocally established that two factors contributed to decedent’s death, namely barbiturate poisoning and acute alcoholism. As part of his proof there was received in evidence a copy of the assistant medical examiner’s report of the autopsy performed by him upon decedent on the day she died. It revealed that her death was caused by “ Barbiturate (amytol) poisoning. Circumstances undetermined, contributory acute alcoholism.” Other evidence in the plaintiff’s case showed that the deceased had consumed some alcohol during the hours preceding her death and that about four hours before she was found dead she had also taken some sleeping pills ”. The only expert witness called by plaintiff was a chemist of high reputation who testified that both barbiturate poisoning and acute alcoholism caused the death; that the alcohol ‘1 helped the lady to die ”. No physician was called by plaintiff to state an opinion that deceased died, as alleged in the complaint, solely and directly by barbiturate poisoning exclusive of all other causes. Since it was shown in plaintiff’s own case that acute alcoholism contributed to decedent’s death, recovery under the policy was precluded and the motion to dismiss, made at the close, should have been granted.

The proof thereafter submitted by defendant in support of its defense served only to reinforce the fact that decedent’s death was due to acute alcoholism as well as to barbiturate poisoning.

In view of the undisputed evidence, it was error not to have granted the motions made at the close of plaintiff’s case and at the close of the whole case to dismiss plaintiff’s complaint. The determination of the Appellate Term should be reversed and the complaint should be dismissed upon the merits, with costs.

Van Voorhis, J.

(dissenting). We think that by their verdict the jury eliminated acute alcoholism as a contributing cause of the death of the insured.

In any event, death from an overdose of sleeping tablets, which the jury found occurred here, has been held to result from external, violent and accidental means (Mansbacher v. Prudential Ins. Co., 273 N. Y. 140). Even if, in this case, death might not have resulted unless insured’s vitality had also been depressed by the consumption of alcohol, that was at most “ a predisposing tendency ” and not a disease “ in the common speech of men ” (Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81, 84), unless the alcoholism was chronic. Here, the insured suffered at most from acute alcoholism. Insured’s death, therefore, could not have been caused wholly or partly, or directly or indirectly by disease under the exclusionary clause in the policy. Suicide having been eliminated by the jury, plaintiff was entitled to recover.

Powley v. Equitable Life Assur. Soc. (284 N. Y. 664) held, to be sure, that death resulting from a drinking debauch is not accidental, but that is not a controlling precedent where death results from a cause recognized as accidental, notwithstanding that such cause might not have been fatal if the insured had not also been intoxicated.

The determination of the Appellate Term should, therefore, be affirmed, with costs to the plaintiff-respondent and the judgment of the Municipal Court, Borough of Manhattan, First District, in favor of the plaintiff-respondent should be reinstated on the stipulation, filed herein, of the defendant-appellant for judgment absolute against it.

Peck, P. J., and Ghennon, J., concur with Cohn, J.; Van Voobhis J., dissents in opinion in which Dobe, J., concurs.

Determination reversed, with costs to the appellant and the complaint dismissed. Settle order on notice. [See post, p. 1067.]  