Hannon v. Commercial Travelers Mutual Accident Ass'n of America

Foster, J.

(concurring in part). I concur insofar as reversal is concerned, but I think the complaint should be dismissed. Plaintiff had the burden to establish that decedent came to his death as the “ * * * direct and proximate result of and which is caused solely and exclusively by external, violent and accidental means ”. Even the chief medical witness called for the plaintiff did not testify to that. He said there were several contributing factors, including arteriosclerosis. The autopsy, and there could scarcely be better proof, revealed marked sclerosis of the coronary arteries, one artery being narrowed to one-tenth of its normal size. That condition, in my judgment, was something more than merely a “ predisposing tendency.” Since sclerosis, on plaintiff’s own proof, was a contributing cause of death, plaintiff failed to sustain the burden of proof so as to come within the terms of the policy and the complaint should be dismissed.