|Ernst fires a salvo and New York Life caves
May 23, 1927
Memorandum for VP McCall.
In the re-– policy number 8,837,487
The above numbered policy was issued in August 1924 for the sum of $25,000 with
double indemnity, payable to the insureds executors, administrators or assigns, and the
company was appointed trustee of the proceeds of the policy for the benefit of Beatrice
Houdini, wife of the insured.
Houdini died on October 31, 1926, after an operation for appendicitis. A few days prior
thereto, while in his dressing room at the Princess theater in Montréal, Houdini was
struck at least twice in the abdomen by J. Gordon Whitehead, a student of McGill
University, and although there were some rumors that Houdini had been suffering from
stomach trouble prior to this time we have been unable to verify them and I think it must
be conceded from the doctors statements and from affidavits submitted to us that the
appendicitis resulted from the blows.
After the receipt of proofs of death the company admitted liability for the single
indemnity but withheld its decision on the question of its liability for the additional
accident indemnity until the receipt of further proof and the making of further
investigation. Our investigation has been completed and various affidavits have been
submitted to us, including the affidavit of Whitehead and also the affidavits of Smilovitch
and Price, two McGill students who were also in the dressing room at the time Houdini
was struck by Whitehead.
Whitehead states that at the time of his visit to Houdini in the dressing room he found
him lying on the couch and that after some discussion with Houdini about his physical
condition. Houdini suggested that he examine his abdominal muscles, which were very
hard and unyielding, and then invited him to hit him in the abdomen, which he did twice,
the second blow being harder than the first, and that Houdini did not give any indication
of discomfort and said nothing further about the matter. Whitehead admits that
Smilovitch and Price were present in the room at the time and that both these men have
given affidavits to the effect that Whitehead struck Houdini three or four times in the
abdomen, after first securing his permission, but that Houdini did not appear to have
prepared himself for the blows and that they protested and Houdini stopped Whitehead
as he was about to deliver another blow and immediately thereafter stated that he had
had no opportunity to prepare himself against the blows and did not think Whitehead
would strike him as suddenly as he did. It also appears from the affidavits of other
persons with whom Houdini talked the same afternoon that he stated to them that he was
not prepared for the blows and that they caused him considerable pain and distress,
which continued up to the time of the operation.
The decisions of this state have held that where the injury or death of the insured
follows unexpectedly from his voluntarily and intentional act such injury or death
although perhaps deemed accidental in the sense that they were unexpected do not
result from an accidental cause.
If it were the fact that Houdini invited the blows and had full prepared for them before
were struck then, in my opinion, is death from appendicitis following such blows could
not be said to have resulted from an accidental cause but I am not entirely satisfied that
such is the fact and moreover the evidence on the trial, with the exception of the
testimony of Whitehead would be very strongly to the contrary. It might also be argued
with much force that Whitehead's testimony would naturally be such as to place him in
the most favorable light in view of the unfortunate outcome of his action.
After a careful consideration of all the facts and the law I am satisfied that the company
could not successfully defend the suit for the additional accident indemnity and advise
that the company admit liability therefore.