Suslensky v. Metropolitan Life Insurance

Shientag, J. This is an appeal from an order granting summary judgment in favor of the plaintiff, the beneficiary of an insurance policy on the life of her husband, for double indemnity, because of his death by accidental means. The decedent, sixty-three years old, died March 14, 1940, as the result of a poison, muriatic acid, taken by him. That is conceded. The dispute is whether the poison was taken by mistake or inadvertence or whether the defendant committed suicide. The company paid $2,000, the face amount of the policy, but refused to pay the double" “ Accidental Death Benefit.” Action therefor was commenced on December 2, 1940. In consequence [625] of various stipulations, an amended complaint was served on October 27, 1942, and issue finally joined on November 24, 1942. The motion for summary judgment was made returnable on January 25, 1943. Summary judgment was granted by the court below on the ground that the defendant, in its answering affidavit, failed to raise any triable issue of fact. The plaintiff claims that her husband, while at work early on the morning of March 14, 1940, drank from a bottle which he thought contained cider but which in fact was filled with muriatic acid, a poison. He was taken to the hospital and died early the same afternoon. The hospital records recite as the diagnosis — accidental poisoning. The certificate of the medical examiner likewise recites the cause of death as accidental poisoning and contains the statement of the decedent’s son giving a history of poison taken by mistake. The plaintiff in her moving affidavit sets forth in some detail facts known to her, tending very strongly to indicate that the death of her husband, the insured, was not due to suicide, that there was no motive for suicide but that the taking of the poison was a mishap due entirely to mistake. The opposing affidavit sets up no facts in opposition to the motion. It does not even recite that the defendant has no knowledge of the facts. It merely analyzes the plaintiff’s affidavit and the documentary evidence attached thereto and concludes that “ from the plaintiff’s moving affidavit itself and her own conclusive admission of facts at issue, it appears that the requirements of rule 113 of the Rules of Civil Practice have not been and cannot be satisfied. The plaintiff in her affidavit has failed to sustain the burden of showing that the answer of the defendant is a sham and was interposed solely for the purpose of delay and should be stricken out.” In other words, the situation is just as though no opposing affidavit at all had been submitted, the defendant relying on the proposition that the plaintiff’s affidavit showed that she was not entitled to the remedy of summary judgment. We believe that the contention of the defendant is sound. Shortly after rule 113 was adopted in this State, the broad principle was announced by Cardozo, J., following the English authorities, that “ The remedy is to be administered in furtherance of justice. ” (Curry v. Mackenzie, 239 N. Y. 267, 272.) Since the rule was aimed against defenses that were feigned and not genuine, it followed that a defendant’s genuine lack of knowledge of the facts constituting the plaintiff’s claim was ground for denying the motion. If this were not so, summary judgment [626] would be a perversion of justice rather than a remedy in furtherance thereof. So it has been held in many cases that if the facts on which the application for summary judgment is based are exclusively within the knowledge of the moving party, or clearly not within the knowledge of the opponent, the relief requested will be denied. (Rogan v. Consolidated Coppermines Co., 117 Misc. 718, 727; Connor v. Commerci.al Travelers, M. A. Assn. of Amer., 247 App. Div. 352; Kass v. Equitable Life Assur. Soc., 257 App. Div. 931; Karpas v. Bandler, 218 App. Div. 418, 421.) Of - course it must appear that the lack of knowledge,by the opposing party is genuine. If the facts are matters of public record or are otherwise fully available to the opposing party, his plea of lack of knowledge would be without force. It is because of the application of the foregoing principle ‘ that summary judgment is rarely granted in actions on policies of insurance. Almost always in such cases the facts are not within the knowledge of the defendant, who is therefore entitled to have the plaintiff’s claim submitted to the test of cross-examination. The better practice, even in such cases, is for the defendant to submit in proper form what knowledge he has on the subject, or to set forth his lack of knowledge. But the nature of the case may be such that the very facts set forth in the moving affidavit itself demonstrate that a trial rather than a summary judgment is appropriate. In this case the vital question was the state of decedent’s mind when he drank the contents of the bottle containing the poison. This is not the case of a prescription written or compounded by a third party, by mistake or otherwise, containing a poisonous ingredient, taken by another with resulting death. No act of any third party, so far as the papers show, intervened. The insurance company cannot know or be expected to know what was running through the decedent’s mind at the time he drank the contents of the bottle of poison. To quote an expression used by Lord Bowen which has become a classic in the law, “ The state of a man’s mind is as much a fact as the state of his digestion.” (Edington v. Fitzmaurice, L. R. .[1885] 29 Oh. Div. 459, 483.) The only way the insurance company has of determining the state of mind of the decedent is to develop his conduct and his expressions prior to the occurrence, and the details of what took place, all as tending to show motive for, or intent to commit, suicide. This it can only do by means of a trial with opportunity for examination and cross-examination of witnesses, including relatives and associates of the deceased [627] — a difficult task to be sure, but by no means an impossible one. The insurance company being, under the very circumstances of the case, deprived of the opportunity to have knowledge of the state of mind of the decedent, is not obliged to accept the plaintiff’s version of the occurrence. It is urged, however, that the law lays down a strong presumption against suicide. (Bolger v. Prudential Ins. Co., 250 App. Div. 1-22.) That presumption, on a trial, may be and often is the determining factor; but the presumption is one capable of being rebutted. The existence of the presumption is no ground for denial of the right to a trial, for saying that there is in truth nothing to be tried. Judgment and order reversed, with costs, and motion denied. 1 McLaughlin, J., concurs with Shientag, J.; Hecht, J., dissents, in opinion.