
    Marshall J. Root, as Administrator, etc., of John B. Crosby, Deceased, Respondent, v. London Guarantee and Accident Company, Limited, Appellant.
    
      Accident-insurance policy excluding injuries “ of which there: is. no/visible markon the ¡body”—pallor,, emaciation and decline constitute “visible"' marks,—incorrect statement of full particulars of the accident—refusal to permit the insurer to hold an autopsy— laches in tiie demand therefor.
    
    In an .action upon a policy of insurance, “against bodily injuries, sustained wholly -and exclusively through external violence occasioned accidentally by visible means,” it appeared that the policy provided' “ That this insurance-does .not -cover injuries of which there is no visible mark -on the body (tbe-body itself in case of death not being -deemed such mark).” >
    The insured, an athletic man, in vigorous health, fell from a bicycle and broke his right femur. Immediately after the accident he complained of intense pain in his back between the shoulder blades and in his chest. There were no visible marks upon the insured’s back or chest. The fractured femur reunited, but the pains continued with increased intensity until the insured finally died. The physician attributed his death to angina pectoris caused by the fall from the bicycle. Immediately after the accident the insured’s face became pallid and he began to decline, which condition continued progressively until his death.
    
      Held, that the insurance company was not relieved from liability under the provision of the policy, “ That this insurance does not cover injuries of which there is no visible mark on the body (the body itself in case of death not being deemed such mark);”
    That the insured’s pallor, emaciation and decline furnished visible signs of Ms injury;
    That where it is plain that an accident has occurred and severe injuries have resulted and it is a fair deduction from the circumstances that death ensued as the direct consequence of such accident the policy should be construed to hold the defendant liable, even though no contusions or marks appear upon the body;
    That a notice sent by the insured to the defendant the day after the accident, describing in detail the manner and time of the accident and that the injury sustained was a broken hip bone, tMs being the best information then possessed by the insured and Ms physician, constituted a sufficient compliance with the provision of the policy requiring the written notice to contain “ full particulars of the accident; ”
    That a breach of a provision in the policy, that “ any medical adviser of the company shall be allowed to examine the '* * * body of the assured,” could not be predicated upon the refusal of‘the defendant’s demand for an autopsy, made the day after the insured had been buried, it appearing that the defendant knew of the .insured’s death two days before his burial and that the demand for the autopsy was not made upon any of the insured’s, relatives, but upon a person who was subsequently appointed administrator of the insured’s estate;
    That the delay of the defendant in mating the demand for the autopsy was unreasonahlc.
    Appeal by the defendant, the London Guarantee and Accident Company, Limited, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 13th day of August, 1903, upon the verdict of a jury for $5,175, and also from an order entered in said clerk’s office on the 13th day of June, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      Frank Gibbons, for the appellant.
    
      Lovás L. Babcock, for the respondent.
   Spring, J.:

This action is by the administrator of John B. Crosby, deceased, to recover on an accident policy issued by the defendant December 3, 1901, for one year and which insured against death by accidental means.

The proof shows that Crosby fell from a bicycle on Irving place in the city of Buffalo on the 20th day of June, 1902, fracturing his right femur and it is claimed sustaining other injuries which culminated in his death on the tenth day of August following. At the time of the accident Crosby was fifty-one years of age, of robust health, vigorous in his mode of life, temperate in his habits and careful of his diet. Immediately after the accident his face was pallid, he became emaciated and complained constantly of intense pain in his back between the shoulder blades and in his chest. These anginal pains increased in intensity, and the spasms were interrpittent and prostrating to the time of his death. From the evening of the injury he was unable to lie down, but was compelled to sit up by reason of the severity of the heart spasms. The fractured femur recovered and this injury did not necessitate his sitting up. The physicians, in response to a hypothetical question fairly containing the facts proven, attributed the death to angina pectoris, caused by the accident in falling from his bicycle.

The. evidence of the laymen corroborated the professional opinions of the plaintiff’s medical experts. Hiss Slater, who saw him daily, testified: “ He was very pale.’ The foot of the bed was raised, and he was all bnilt up with pillows. He assumed in bed almost a right angle ; almost sitting upright. I saw him, from time to time, from this first Saturday after the injury up to the time of his death, almost every day. I would visit him both at the General Hospital and at Hr. Root’s house. Fie was pale and weak, and grew weaker every day. When I would go in the morning I would ask him how he felt; he would say that he didn’t seem to have much trouble with the hip, but the pains of the back and chest still continued, and he seemed to grow weaker every day. His position in bed was just the same about as it was — well, the limb was laid straighten, but he was almost sitting up in the bed. I never saw him during all this period lie down.”

Oochrane,who also was with him every day, described his condition, saying: “ He was injured on Friday evening; I saw him on Saturday afternoon. In appearance he was a man that was suffering a great deal; he was sitting in bed, or, at least, he was propped in bed at about an obtuse angle to a right; he was very pale and he complained to me about his general discomfort and suffering. He said he suffered more in his body than he did from the broken leg.”

He also said that the pains complained of were between the shoulder blades and in his back. The fact, therefore, appears that Crosby, an athletic man, in vigorous health and in the prime of life, began to decline from the day of the injury and progressively weakened until death intervened. The jury were amply justified from the evidence in finding that his death was due to the injury received in the fall from the bicycle, and which was sufficiently violent to break the large bone of his leg.

By the provisions of the policy the defendant insured Crosby in the sum of $5,000 “against bodily injuries sustained wholly and exclusively through external violence occasioned accidentally by visible means.” It further provides: “ That this insurance does not cover injuries of which there is no visible mark on the body (the body itself in case of death not being deemed such mark).”

The physicians testified that the heart spasms were not attributable to a broken femur. There was no visible mark on the back or chest arid the appellant contends that the anginal pains even though resulting from the accident do not bring the case within the compass of the policy. We think this is too narrow a construction to put upon its language. Where it is plain that an accident has occurred and severe injuries have resulted and it is a fair deduction from the circumstances that death ensued as the direct consequence of such accident the policy should be construed to hold the defendant'liable even though no contusions or marks appear upon the body. A man may be killed by a blow over the heart, or by drowning or by falling from a balloon and death ensue before reaching the ground and in each instance there may he no mark upon the body,.yet the death is by accidental means and should be within the purview of the policy.

In Menneiley v. Employers' Liability Assurance Co. (148 N. Y. 596) the policy contained the clause that it “ does not insure against death or disablement * * * from accidents that shall bear no external: and-visible marks.” The insured met his death while in bed from the inhalation of illuminating gas but there was no mark upon his body. The Court of Appéals in construing this provision say at page 6©2:: •“ It is: somewhat difficult to understand precisely what was intended by this clause of the policy. We are, however, of the ^pinion that the language employed, when fairly construed, indicates that its purpose was to provide that a case of death or injury should not be regarded as within the policy, unless there was some external or visible evidence which indicated that "it was accidental. In other words, that only such injury as could be shown by external and visible evidence to have been accidental should be regarded a® within the policy.”

The court further say that illuminating gas was ■ discoverable in the room, and emanated from his body upon the production of artificial respiration, and the court add: “Wethink this admission furnishes sufficient evidence of an external and visible character that the death of the decedent was accidental to exclude it from this exception in the policy, and.hence that it was one of the accidents- against which the defendant intended to insure.”

Crosby’s pallor and emaciation and decline were apparent after the accident, and furnished visible signs of the injuries. In Mutual Accident Association v. Barry (131 U. S. 100) the insured jumped from a platform- to the ground and died nine days thereafter, and there was- no mark upon his person. The policy excluded “ any bodily injury of which there shall be no external and visible sign.” The court, in charging the jury, said (at p. Ill): “ Complaint of internal soreness is not such a sign, for that you cannot see, but if the internal injury produces, for example, a pale and sickly look in the face, if it causes vomiting or retching, or bloody or unnatural discharges from, the bowels, if, in short, it sends forth to the observation of the eye, in the struggle of nature, any signs of the injury, then those are external and 'visible signs, provided they are the direct results of the injury.” A recovery whs had which was sustained in the United States Supreme Court. (See, also, Gale v. Mutual Aid & Accident Association, 66 Hun, 600.)

The defendant'evidently intended that this clause should exclude liability in case of death from accident unless there is a visible mark upon.the body. Ibis very doubtful whether the scope of the language will be so extended in any event. (Paul v. Travelers' Ins. Co., 112 N. Y. 472; McGlinchey v. Fidelity & Casualty Co., 80 Me. 251.)

The appellant claims that proper notice of the character of the accident was not given. The policy required that the written notice shall contain “ full particulars of the accident.” On the day after the accident Crosby signed a written notice describing in detail the manner and time of the accident, and that the injury sustained was a broken hip bone. That was the sole injury, so far as he knew, and the physician in attendance did not appreciate the import of the pain of which he complained. He gave to the defendant the best information he- possessed or that was available at the time.

The proofs of death furnished to the defendant were sufficiently explicit. Dr. Hopkins described the manner of the accident and the injuries and cause of death as .follows: On June 20, 1902, he fell from his wheel receiving a fracture of his right femur, and some injury to his chest which resulted in an attack of angina pectoris from which he died.”

The policy contains the provision that “ any medical adviser of the company shall be allowed to examine the * * * body of the assured.” Crosby died on Sunday and was buried on Wednesday. On Thursday Mr. Williams, a representative of the defendant, applied to have an autopsy performed. Mr. Root declined to have the body exhumed for that purpose. He was not a relative of the decedent and had not then been appointed administrator. It was not within his province to grant the privilege. There is no suggestion that any application for the autopsy was ever made -to the relatives of the decedent. Mr. Williams knew of Mr. Crosby’s death the day after it occurred and conversed with the plaintiff on that day but did not then ask that an autopsy be made at the instance of the defendant. The delay until after the burial was unreasonable. (Wehle v. U. S. Mut. Accident Assn., 153 N. Y. 116; Ewing v. Commercial Travelers’ Accident Association, 55 App. Div. 241.)

The judgment and order should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  