Burr v. Commercial Travelers Mutual Accident Ass'n of America , 56 N.Y.S.2d 908 ( 1945 )

Foster, J.

(dissenting). The policy in question insured decedent against death “ caused solely and exclusively by external, violent and accidental means ”. The testimony, viewed in a light most favorable to the plaintiff, does not show that decedent came to his death in a manner within the meaning of the language quoted. The testimony most favorable to the plaintiff is that he died from a heart attack caused by overexertion and a fall against a shovel or his car. Overexertion is not a cause of death commonly spoken of or included within the meaning of the terms external, violent and accidental means. (Wilcox v. Mutual Life Ins. Co., 265 N. Y. 665.) It is not claimed that decedent died of a heart attack brought on solely as a result of a fall, which might be found to be a violent, external and accidental cause (McGrail v. Equitable Life Assurance Society, 292 N. Y. 419), but rather as a result of overexertion and a fall. Waving aside any argument over the alleged sclerotic condition of his coronary arteries, the proof was insufficient to sustain a verdict and the complaint should be dismissed.

Htt.t., P. J., Heeeernan, Brewster and Lawrence, JJ., concur in Per Curiam opinion; Foster, J., dissents in memorandum.

Judgment and orders affirmed, with costs.