McQueen v. Prudential Insurance

143 Misc. 682, 256 N.Y.S. 906, 1932 N.Y. Misc. LEXIS 1047

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 6, 1932
• Status: Published

Opinion

Per Curiam.

The action is on an insurance policy providing for additional benefit if the death of the insured occurred as the result of bodily injuries “ effected through external, violent and accidental means.” The insured engaged in a friendly boxing bout while undergoing physical training in a gymnasium. He was struck on the nose and a rupture of a blood vessel ensued. Later general septicemia developed from which he died.

There was proof from which the jury might have found that the germ causing the infection entered through the rupture in the nose. While the insured's participation in the boxing bout was intentional, there appears to be a question of fact as to whether the injury was one ordinarily to be expected from or attendant upon indulgence in such exercise, and even if some injury to the nose might have been expected, the dire result which followed was so out of proportion to its trivial cause that whether it was due to accidental means was for the jury. (Lewis v. Ocean A. & G. Corp., 224 N. Y. 18.)

In addition, we find that the trial court erred in striking out the answer to a hypothetical question after plaintiff had rested and in refusing plaintiff permission to offer further proof on the point; also in excluding from evidence plaintiff’s Exhibit 4 for identification, a letter which tended to show notice and waiver of proof of further notice.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

All concur; present, Levy, Callahan and Untermyer, JJ.