
    Amelia M. Appel, as Administratrix, etc., of Joseph M. Appel, Deceased, Plaintiff, v. The Ætna Life Insurance Company, Defendant.
    
      Accident insurance — death from an injury to the appendix caused, by the muscle rubbing against it while the insured was riding a bicycle — effect of a request for the direction of a verdict.
    
    A policy of accident insurance obligating the insurance company to pay certain sums if death resulted solely from bodily injury effected through external, violent and accidental means, which, independent of all other causes, resulted in the death of the insured, does not impose liability upon the insurance company where the insured died as the result of appendicitis caused by a bicycle ride voluntarily and deliberately taken by the insured, when it appears that, during the continuance of the ride, the insured did not sustain any fall or shock or come into collision with anything, and that the appendicitis was due to the fact that one of the muscles used in the operation of riding the bicycle necessarily rubbed against the appendix and inflamed it.
    The effect of a request made upon the trial of an action by each of the parties thereto- for the direction of a verdict in his favor is to clothe the court with the functions of the jury; if the party whose request is denied does not thereupon request to go to the jury on the facts, a verdict directed for the other party stands as would the finding of a jury for the same party, in the absence of any direction, and the review, upon appeal to the Appellate Division, is governed by the same rules as apply in cases of verdicts rendered without direction; all controverted and inferrible facts will be deemed conclusively established in favor of the party for whom the verdict was directed.
    Motion by the defendant, The -¿Etna. Life Insurance Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the verdiet of a jury rendered by direction of the court after a trial at the Monroe Trial Term.
    The action was commenced on the 29th day of March, 1902, to recover the amount of a twentieth century combination accident policy issued by the defendant to the plaintiff’s intestate. At the close of the plaintiff’s evidence the defendant made a motion for a nonsuit, which was denied and an exception was duly taken. The defendant then moved for the direction of a verdict in its favor, which was also denied and defendant excepted. The plaintiff then moved for the direction of a verdict in her favor, which was granted, and an exception to such direction was' taken by the defendant. The defendant then made a motion for a new trial, and the court directed that such motion be heard on a cáse containing exceptions at the Appellate Division in the first instance.
    
      Charles Van. Voorhis, for the plaintiff.
    
      Joseph W. Taylor, for the defendant.
   McLennan, J.:

The facts are not in dispute, and both parties having moved for the direction of a verdict, and the defendant not having asked to go to the jury upon any question of fact, the plaintiff is entitled to have the evidence construed most favorably to her, and to any inference which may be legitimately drawn therefrom which tends to support the verdict in her favor.

In Thompson v. Simpson (128 N. Y. 270) the head note, we think, states the correct rule as follows : The effect of a, request by both parties upon trial of an action for a direction of a verdict in his favor is to clothe the court-with the functions of the jury; if the party whose request is denied does not thereupon request to go to the jury on the facts, a verdict directed for the other party stands, as would the finding of a jury for the same party, in the absence of any direction, and the review, upon appeal to this court, is governed by the same rules -as apply in cases of verdicts rendered without direction; all controverted and inferable facts will be deemed conclusively established in favor of the party for whom the verdict was directed.” To the same effect see: Adams v. Roscoe Lumber Co. (159 N. Y. 176); Smith v. Weston (Id. 194); Westervelt v. Phelps (171 id. 212).

The facts, stated most favorably to the plaintiff, are: On or about the 11th day of January, 1901, the defendant duly issued its policy of insurance, in consideration of the warranties contained in the application therefor and of the sum of twenty-five dollars paid to it as premium, by which it insured Joseph M. Appel, the plaintiff’s-intestate, for a period of one year, against the result of accident. The policy provided, in substance and in terms so far as it is important to note, that if death resulted solely from bodily injuries effected through external, violent and accidental means, which, independent of all other causes, resulted in the death of the insured, his representatives (the plaintiff in this action) would be entitled to receive the sum of $5,000; and that if such death' resulted from such an accident while riding a bicycle, the plaintiff would be entitled to receive double that sum; and that, in case death resulted from other causes, defendant would not be liable.

As appears by the uncontradicted evidence, the insured, who was an experienced bicycle rider, started from his home in the city of Rochester at about three-thirty o’clock on the afternoon of August 26,1901, being then apparently in his usual health, to take a ride on his bicycle. He continued to ride, going over some rather rough” road, until five o’clock, when he reached his brother’s store, where he was employed. His clothing was dusty, and “ he was breathing as any one would if they had been on a ride.” The deceased then washed himself and entered upon the performance of his duty in the store, continuing until half-past seven o’clock when he went home on his wheel, arriving there at about a quarter of eight, and had his supper. Soon after he complained of soreness in his abdomen ; went to bed at ten o’clock, and about two o’clock in the morning commenced to suffer great pain in the region of the abdomen. His wife applied or gave him certain remedies to relieve the same, which apparently had that result. He got up the next morning at about six o’clock, the usual hour, when he was again taken with severe pain. A physician was called who found it necessary to administer a hypodermic in order to get him into bed. At midnight following he was taken with vomiting, had a severe chill and the physician was again sent for. The physician found the intestate suffering very severely from pain in the abdomen, and discovered a marked tenderness over the appendix. He diagnosed the trouble as appendicitis and advised an operation. Another physician was called in consultation, who concurred in the diagnosis,, and the intestate was' removed tó a hospital and on the afternoon of August twenty-eighth an operation for appendicitis was performed. The insured died on August thirty-first, three days later. The operation disclosed that there had been a rupture of the appendix at its base, and the immediate cause of death was septic peritonitis, caused by extravasation of the contents of the appendix into the abdominal cavity. In performing the operation it was discovered that there were hard substances in the appendix. about the size of a bean, called “ coproHtes or concretions,” which it would take months to form, and which constituted an unnatural condition of the organ, and one which might possibly at some time have resulted in appendicitis independent of' any other cause, but which might not have caused any serious consequences.

The evidence of the plaintiff tends to prove — and we will assume it to be a fact ■—■ that the appendicitis which resulted in the death of the insured was caused by the bicycle ride which he took on the afternoon of August twenty-sixth. The physicians called as witnesses on behalf of the plaintiff testified that in their opinion this was true, because the “psoas ” muscle, the function of which is to flex the leg upon the body and rotate the leg and thigh upward,' lies in close proximity to the appendix, and in such position that" when brought into play, as by riding a bicycle, it necessarily rubs against the appendix, and there being “ coprolites or concretions ” (hard substances about the size of a bean) in such organ; such rubbing or play of the muscle caused irritation resulting in inflammation, which weakened the walls of the appendix, caused it to rupture, thus permitting the contents of that organ to enter the abdominal cavity, causing appendicitis, septic peritonitis and death.

We can conceive of no theory upon which it can be. said, from the facts disclosed by the evidence, that the death of the insured resulted from “bodily injuries effected * * * through external, violent and accidental means,” within the meaning of the policy. Riding the bicycle was in no sense an accident or accidental ;■ the insured planned for and deliberately entered upon the project, and, so far as appears, it was carried out precisely as intended. He sustained no fall or shock ; came into collision with nothing; he went where he chose; selected his route, his wheel at all times under perfect control, and he brought into, play such muscles of the body and only such as he willed. The result of such ride, while extraordinary, in no manner proves that it was accidental. If the deceased had had a weak heart, and had deliberately and in the usual way walked rapidly up a hill, which caused the heart action to stop, could it be said that death was the result of accident % It might have been unwise to undertake to reach the top of. the hill on foot, and of course the result was not anticipated, but there was no accident about it.

The most that can be said in such cases, and in the case at bar, is that the result was accidental, but the means which produced it were not accidental. As we have seen, the evidence wholly fails to show that the deceased did anything which he did not fully intend to do, or that what he did was not done precisely as intended; therefore, the result of such acts, his death, was not produced by “ accidental means.”

.This view of the matter is fully sustained by the authorities cited by defendant’s counsel: Southard v. Railway Passengers Assurance Co. (34 Conn. 574); McCarthy v. Travelers' Ins. Co. (8 Biss. 362); Ætna Life Ins. Co. v. Dorney (48 Ohio Law Bul. 303); Feder v. Iowa S. T. M. A. (107 Iowa, 538).

• The cases cited by the learned counsel for the plaintiff are not in conflict with the principle for which the defendant contends.

In Paul v. Travelers' Ins. Co. (45 Hun, 313 ; affd., 112 N. Y. 472) the insured accidentally inhaled illuminating gas, and death resulted.

. In Tucker v. Mutual Benefit Life Co. (50 Hun, 50) the insured went with others to a disabled steamer on Lake Ontario, to aid in rescuing the crew. While returning from the wreck the boat was accidentally capsized by a heavy sea and the insured was drowned. When his body was found two days later a bruise was discovered across his left temple, and, under those circumstances, it was properly' held that it was for the jury to say whether death resulted from “bodily injuries through external, violent and accidental means.” In fact the evidence, in that case was such as to almost conclusively establish the fact.

In Larkin v. Interstate Casualty Co. (43 App. Div. 365) the only question of fact raised by the evidence was whether the death of the insured resulted from a fall caused by slipping upon the floor and striking his head against the fender of a stove, or whether such fall was caused by an attack of vertigo. The court held that, the evidence was of snch a character as to require that question to be submitted to the jury.

In Martin v. Equitable Accident Association (61 Hun, 467) concededly the insured cut his finger accidentally. He died many days later from blood poisoning, and upon all.the evidence in that case the court held that it was a question for the jury to determine whether or not the accident was the cause of death.

In Bailey v. Interstate Casualty Co. (8 App. Div. 127) the insured, a physician, who was. in a weakened condition by 'reason of injuries which he had sustained, was riding in a carriage. He stopped and attempted to administer medicine to himself in his leg with a hypodermic needle. While thus engaged the carriage suddenly started, and by reason of such sudden. start he accidentally inserted the needle too deep, and the injury for which he sought to-recover weekly indemnity ensued. The court held that it was. a question for the jury as to whether or not the injury complained of was caused by accidental means.

The foregoing illustrates the principle decided by the many other cases which are cited by plaintiff’s counsel. In each of those cases the facts established that the thing or acts which caused the injury or death were accidental, were not intended, or the evidence was of such a character as to make that question one of fact.

Our attention has not been called to any case which holds, and we-have- failed to discover any authority for the proposition, that a result- which is produced by means, all of which and every detail of which was intended, Can bé said to have been produced by accidental means, simply because the result which followed the employment of such means, exactly in the manner intended, was different from the result anticipated. In order that the plaintiff may succeed in the case at bar, it is necessary that we. should assent to that exact, proposition. We think that is not the proper construction Or-true meaning of the language of the policy in suit.

■ Having reached the conclusion indicated, which goes to the’merits of the plaintiff’s- alleged cause of action, we deem it. unnecessary to-consider- any of the Other questions presented, by the appeal.

The- defendant’s exceptions should be sustained and motion for a new trial granted, with costs to the defendant to abide the event.

Adams, P. J., Williams and Hiscock, JJ., concurred; Spring, J., not sitting.

Defendant’s exceptions sustained and motion for new trial granted, with costs to the defendant to abide the event.  