Drown v. New Amsterdam Casualty Co.

SHAW, J.

The plaintiff has appealed from the judgment upon the judgment-roll alone. The court below having sustained the demurrer to the complaint' without leave to amend, the sole question presented is whether the complaint states a cause of action.

The action is by the administrator of the estate of Archer Cullen Drown to recover the proceeds of a policy issued by the defendant company insuring the said Archer Cullen Drown against death by accidental means. The complaint alleges that on June 22, 1912, the defendant issued the policy sued on whereby the company agreed “to pay . . . , in the event of the accidental death of said Archer Cullen Drown,

... to the beneficiary designated in said policy, if surviving, otherwise to the executors or administrators of said Archer Cullen Drown,”

the proceeds of the policy; that Amelia C. Drown, wife of the insured, was and is named therein as the beneficiary; that while the policy was in full force and effect, on the twenty-fourth day of October, 1913, the said Archer Cullen Drown met with death by accidental means in the following manner: That while the said Archer Cullen Drown was “reclining and reposing in his bed, and whilst he was wholly unarmed, and was resting and endeavoring to or was sleeping, his said wife Amelia C. Drown took a loaded pistol in her hand and discharged the same at the said Archer Cullen Drown, and shot and killed her said husband Archer Cullen Drown”; that the injuries resulting therefrom were not intentionally or otherwise self-inflicted and that the injuries and resulting death were without design, unforeseen, and unexpected on the. part of the said Archer Cullen Drown; that

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claim of loss under said policy was duly presented to the defendant company; that said Amelia C. Drown, the beneficiary designated in the policy, caused the accidental death of said Archer Cullen Drown, as above related, and that “because such death was caused by her act, as aforesaid, she is not herself entitled to take any advantage or benefit under said policy, . . . but that the liability of the said defendant New Amsterdam Casualty Company .upon and under said policy continues in full force and effect, and any and all moneys upon or under said policy belong to and form part of the estate of said Archer Cullen Drown, deceased”; that said Amelia C. Drown claims an interest adverse to plaintiff in the proceeds of said policy as the designated beneficiary and is a necessary party defendant; that said Amelia C. Drown after the death of the said Archer Cullen Drown did assign and transfer to the plaintiff, as such administrator, all her right and interest under the said policy; that demand was duly made by plaintiff upon the defendant company for the payment of the proceeds of the said policy but that the said defendant company has refused to make such payment to plaintiff or to the said Amelia C. Drown, or to any other person on account of or in satisfaction of the amount due under said policy.