Johnson v. Metropolitan Life Insurance

271 A.D.2d 890

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 1946
• Status: Published

Opinion

Action to recover a death benefit under a policy of accident insurance. The insured had a toothache and an infected gum. A dentist negligently injected a liquid anesthetic into the gum, ’causing the infection to reach deeper and wider areas. The increased infection was treated medically and surgically, and the patient died. The policy covers death by violent and accidental means, but excludes the risk of death wholly or partly by any kind of infection. An exception to the above exclusion is made in a case where septic infection of and through a visible wound is caused solely by violent and accidental means. Judgment, entered on the direction of a verdict in favor of plaintiff, reversed on the law, with costs, and the complaint dismissed on the law, with costs. The facts are affirmed. Plaintiff’s evidence is uncontradieted. We hold as matter of law that, under the' proof, the death of the insured is excluded as a risk, being one caused by “ any kind of infection ”; and that the case is not within the exception to the exclusion because there was no “ infection of and through a visible wound ” which was caused solely by “ violent and accidental means ”. Hagarty, Acting P. J., Adel and Nolan, JJ., concur; Carswell and Johnston, JJ., dissent and vote to affirm. [187 Misc. 66.]