Onondaga County NyArchives Court.....Peck, Marcia Vs. Equitable Accident Assoc Of Binghamton 1889
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Source: Reports Of Cases - New York
Written: 1889

Cases Determined in the Fourth Department at General Term, May, 1889.  

MARCIA E. PECK, Respondent, v. THE EQUITABLE ACCIDENT ASSOCIATION OF BINGHAMTON 
N. Y., Appellant.

Accident insurance certificate — in what form and under what circumstances a 
recovery may be had thereon — what is "direct and positive proof" of death 
by "external, violent and accidental means."

By a certificate of membership, issued to one Ira Peck, the defendant, The 
Equitable Accident Association, agreed to pay to the plaintiff a sum to be 
realized by an assessment not to exceed $5,000 within sixty days after due and 
satisfactory proof should be filed with its secretary, that said Peck had, while 
a member, sustained injuries effected through external, violent and accidental 
means, and that such injuries alone had occasioned death within ninety days from 
the happening thereof. Said certificate also contained the following 
condition: "Benefits under this certificate shall not extend, * * * to any cause 
of death or personal injury, unless the claimant under this certificate shall 
establish by direct and positive proof that the death of the person injured was 
caused by external, violent and accidental means, and was not the result of 
design either on the part of the member or of any other person."

On Thursday, March 24, 1887, and within the life of the certificate, the arm of 
said Ira Peck was broken; how, in what manner, under what circumstances or at 
what place he was at the time it was broken did not appear. At seven o'clock p. 
m., on that day, he was in front of the Vanderbilt House, in the city of 
Syracuse. At twelve o'clock of the same day he was, with his arm broken, at his 
rooms in that city, where the fracture was reduced. On the following Tuesday he 
was taken ill quite suddenly with severe pains in his chest and lungs, from 
which he was relieved, and was convalescent for a week or ten days, when he was 
again attacked in a similar manner, and on April 12, 1887, he died.

The evidence introduced by the plaintiff tended to show that the cause of his 
death was embolism or thrombus, which was the direct result of his arm being 
broken, while the evidence of the defendant tended to show that his death was 
caused by pneumonia, and that the breaking of his arm was not the cause of his 
death.

In an action, brought by the beneficiary named in the policy to recover $5,000 
and interest:

Held, that the evidence was sufficient to justify the trial court in finding 
that the fracture of the defendant's arm alone caused his death, and that it was 
the sole and proximate cause thereof. 

That the requirements of the certificate as to "direct and positive proof" did 
not make it necessary that the plaintiff should establish the fact and attendant 
circumstances of the decedent's injury, by persons who were actually present 
when the injury occurred. 

That the fact that the injury was caused by external violence was directly and 
positively established by the proof given of the nature and character of his 
injury.

That the presumption, if any, was that his injury was caused by accidental means 
rather than that it was the result of design either on the part of the decedent 
or of any other person.

That it was not to be presumed that his injury was self-inflicted, or that it 
was intentionally inflicted by any other person.

The certificate provided that the principal sum agreed to be paid should be 
realized upon an assessment, in accordance with the provision of the by-laws of 
the association within sixty days after due and satisfactory proof should be 
filed with its secretary of the injuries sustained.

It was found by the trial court that if an assessment had been levied as 
provided by such policy, it would have produced at least $5,000, and that the 
plaintiff was entitled to a judgment for that sum, with interest and costs.

Held, that this action was maintainable in its present form.

Freeman v. National Benefit Society of New York (42 Hun, 252); Fulmer v. Union 
Mutual Association (12 N. Y. State Rep., 346); Hankinson v. Paige (12 Civ Pro. 
R., 279, 288); O'Brien v. Home Benefit Society of New York (21 N. Y. State Rep., 
640, 643) followed.

Appeal by the defendant from a judgment, entered in the office of the clerk of 
the county of Onondaga on the 26th day of December, 1888, recovered upon a trial 
at the Onondaga County Circuit before the court without a jury.

The action was upon a certificate of membership, issued to one Ira Peck by the 
defendant, which was in the nature of a policy of insurance against accident. 
It, among other things, provided that the defendant would pay, at its office in 
Binghamton, N. Y., to the plaintiff the principal sum, not exceeding $5,000, 
realized upon an assessment in accordance with the provisions of its by-laws, 
within sixty days after due and satisfactory proof should be filed with its 
secretary that said Peck had, while a member, sustained injuries effected 
through external, violent and accidental means, and such injuries alone had 
occasioned death within ninety days from the happening thereof. It also provided 
that such certificate was issued and accepted subject to the conditions, 
provisions, limitations and exceptions therein contained or referred to, 
together with the classification of hazards embraced therein, and all of the 
provisions of the rules, regulations and by-laws of the defendant which were 
made a part of the contract between the parties.

Among the conditions which were made a part of such certificate or policy were 
the following: "That benefits under this certificate shall not extend * * * to 
any death or disability which may have been caused wholly or in part by bodily 
infirmities or disease existing prior or subsequent to the date of this 
certificate, * * * nor to any case except where the injury is the proximate and 
sole cause of the disability or death, * * * and these benefits shall not be 
held to extend * * * to any cause of death or personal injury, unless the 
claimant, under this certificate, shall establish, by direct and positive proof, 
that the death or personal injury was caused by external violence and accidental 
means, and was not the result of design either on the part of the member or of 
any other person."

The defense consisted of denials of the complaint and allegations that the 
assured falsely represented his age; that his death was caused wholly or partly 
by bodily infirmities or by disease existing prior or subsequent to the date of 
the certificate; that the alleged injury was not the sole or proximate cause of 
his death, and that the proper pooofs of the injury were not furnished as 
required by the policy. On Thursday, March 24, 1887, and within the life of this 
certificate, the arm of the said Ira Peck was broken. How, in what manner, under 
what circumstances, or at what place he was at the time it was broken, does not 
appear. At seven or eight o'clock p. m. on that day he was in front of the 
Vanderbilt House, in the city of Syracuse. At eleven or twelve o'clock of the 
same day he was at his rooms in that city with his arm broken. The fracture was 
reduced. On the following Tuesday he was taken quite suddenly with severe pains 
in his chest and lungs. From this he was relieved and was convalescent for a 
week or ten days, when he was again attacked in a manner similar to the first, 
and from that time he gradually grew worse until April 12, 1887, when he died.

The evidence introduced by the plaintiff tended to show that the cause of his 
death was embolism or thrombus, which was the direct result of his arm being 
broken, while the evidence of the defendant tended to show that his death was 
caused by pneumonia, and that the breaking of his arm was not the cause of his 
death. Upon this evidence the trial court found: "That the said Ira Peck, on the 
24th day of March, 1887, met with an accident whereby his arm was fractured, and 
thereby sustained bodily injuries effected through external, violent and 
accidental means within the intent and meaning of said contract of insurance and 
the conditions thereto annexed; that thereafter, and while said contract and 
policy of insurance was in full force and effect, said Ira Peck died at 
Syracuse, N. Y., on the 12th day of April, 1887, and that said bodily injuries, 
sustained by said Ira Peck aforesaid, directly produced a disease of the lungs, 
called by the physicians pneumonia, thrombus and embolism, respectively, from 
which he died, and the said accident, therefore, alone occasioned the death of 
said Ira Peck within ninety days from the happening of the same." It also found 
that if an assessment had been levied as provided by such policy, it would have 
produced at least $5,000, and that the plaintiff was entitled to a judgment for 
$5,000, with interest thereon from August 1. 1887, together with the costs of 
this action.

O. W. Chapman, for the appellant.

W. G. Tracy, for the respondent.

Martin, J.:

The questions chiefly litigated on the trial, and the only questions presented 
for our consideration on the argument of this appeal were: 1. Whether the 
decedent's injury was the proximate and sole cause of his death. 2. Whether the 
fact that the decedent's death or injury was caused by external violence and 
accidental means was established by direct and positive proof within the intent 
and meaning of the policy. 3. Whether the decedent made false statements as to 
his age. 4. Whether this action could be maintained in its present form.

We are of the opinion that the evidence was sufficient to justify the trial 
court in finding that the fracture of decedent's arm alone caused his death, and 
that it was the sole and proximate cause thereof. (McCarthy v. Travelers' Ins. 
Co., 8 Biss., 362; Barry v. U. S. Mutual Accident Association, 23 Fed. Rep., 712 
j National Benefit Association of Indianapolis v. Grauman, 107 Ind., 288.) It 
must be admitted that there was no evidence by any witness who saw the decedent 
when he was injured, as to the particular manner in which his injury was caused. 
But the requirement of this certificate as to direct and positive proof did not 
make it necessary that the plaintiff should establish the fact and attendant 
circumstances of the decedent's injury by persons who were actually present when 
the injury occurred. The fact that the injury was caused by external violence 
was directly and positively established by the proof given of the nature and 
character of his injury. We think the presumption, if any, was that his injury 
was caused by accidental means rather than that it was the result of design, 
either on the part of the decedent or of any other person. It was not to be 
presumed that his injury was self-inflicted, nor that it was intentionally 
inflicted by any other person. The evidence was sufficient to justify the trial 
court in finding that the injury sustained was caused by accidental means. But 
the more difficult question is, whether it was established by such direct and 
positive proof as the certificate required. While this question is not free from 
doubt, still we are inclined to the opinion that the proof was sufficiently 
direct and positive to answer the requirements of the certificate. (Travelers' 
Ins. Co. v. McConkey, 127 U. S. 661, 666; Mallory v. Travelers' Ins. Co., 47 N. 
Y., 52.)

There was not sufficient evidence that the decedent made any false statement as 
to his age to defeat the recovery in this action, and the court properly so 
held. That the plaintiff could maintain this action in its present form seems to 
be established by the cases of Freeman v. National Benefit Society of New York 
(42 Hun, 252); Fulmer v. Union Mutual Association (12 N. Y. State Rep., 346); 
Harkinson v. Page (12 Civ. Pro. R., 279, 288); O'Brien v. Home Benefit Society 
of New York (21 N. Y. State R. 640, 643).

These considerations have led us to the conclusion that the judgment appealed 
from should be affirmed.

Hardin, P. J., and Merwin, J., concurred.

Judgment affirmed, with costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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