Morgan v. Indemnity Insurance of North America

195 Misc. 53, 88 N.Y.S.2d 835, 1949 N.Y. Misc. LEXIS 2193

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 21, 1949
• Status: Published

Opinions

Per Curiam.

This case must he disposed of "below in accordance with the decision of this court. (See Morgan v. Indemnity Ins. Co., 195 Misc. 52, citing Johnson v. Blaney, 198 N. Y. 312.) It is obvious that the jury was warranted in finding death was accidental and not suicidal. The only substantial issue then is whether death was caused by amytol barbiturate poisoning exclusive of the alcohol found in the body of the deceased. If after considering the evidence the jury finds the fact to be that death was caused by amytol barbiturate poisoning exclusive of the alcohol found in the body of the deceased, then a verdict for plaintiff would be warranted. But if the jury finds from the evidence that death was not caused by amytol poisoning exclusive of the alcohol found in the body of the deceased, then the verdict must be for defendant. The word “ exclusive ” must be considered in its ordinary sense, that is, the barbiturate alone caused the death and the alcohol did not concur in or contribute to the cause of death. This does not refer to a cause of taking the amytol. It refers to the cause of death, which means the proximate cause defined as the one without which the death would not have occurred. If alcohol either concurred in or* contributed to the cause of death as a proximate cause, the verdict must be for defendant. A verdict for plaintiff would be warranted only if the evidence shows that death was caused by amytol barbiturate poisoning exclusive of the alcohol found in the body of the deceased.

The judgment should be reversed and new trial ordered, with $30 costs to appellant to abide the event.