Commercial Travelers' Mut. Acc. Ass'n of America v. Fulton

• Decision Date: 23 February 1897
• Citation: 79 F. 423
• Parties: COMMERCIAL TRAVELERS' MUT. ACC. ASS'N OF AMERICA v. FULTON et al.
• Court: U.S. Court of Appeals — Second Circuit

79 F. 423

COMMERCIAL TRAVELERS' MUT. ACC. ASS'N OF AMERICA v. FULTON et al.

United States Court of Appeals, Second Circuit.

February 23, 1897

M. W Van Auken, for plaintiff in error.

Chas A. Talcott, for defendants in error.

Before LACOMBE and SHIPMAN, Circuit Judges.

LACOMBE Circuit Judge.

The relevant parts of the policy, which is dated November 17 1892, are as follows:

'The Commercial Travelers' Mutual Accident Association of America, by this certificate of membership, in consideration of the membership fee and the warranties and agreements contained in his application for membership, hereby accepts Thomas K. Fulton, * * * and hereby insures him, in the following manner, subject * * * to all conditions hereinafter contained, against personal, bodily injuries affected during the continuance of membership and this insurance, through external, violent, and accidental means, to wit: (1) In the sum of $25 per week against loss of time * * * resulting from bodily injuries, effected through means as aforesaid, which shall, independently of all other causes, immediately, wholly, and continuously disable him. * * * (2) Or if such injuries alone shall immediately sever, above the wrist or ankle, one hand and foot,' etc., '* * * the association will pay to the insured * * * $2,500. (4) Any member of this association who, during the continuance of his membership, sustains, through external, violent, and accidental means, an injury, which injury alone, in the judgment of the medical examiners, causes total disability, * * * the said member shall * * * receive $2,500. (5) Or if such injuries alone shall immediately and entirely destroy one eye,' etc., '* * * the association will pay * * * $1,000. (6) Or if death shall result from such injuries alone, and within three calendar months, the association will pay $5,000 to his sisters, Harriet and Anna Fulton. * * * The conditions under which this certificate is issued and accepted by the insured (member) are as follows: First. The insurance shall not extend to or cover disappearances, or injuries, whether fatal or disabling, of which there is no external, visible mark on the body of the insured; nor extend to or cover accidental injuries or death resulting from or caused directly or indirectly, wholly or in part, by hernia, fits, vertigo, somnambulism or disease in any form, or while effected thereby; nor extend to cover injuries or death resulting from or caused by gas or poison,' etc.

On January 1, 1895, the insured, a man weighing from 180 to 190 pounds, while on the sidewalk, waiting for a street car, suddenly fell. From the evidence the jury were entitled to infer that his fall was caused by an accidental slip upon snow or ice, and for the purposes of this appeal it must be assumed that the fall was the result of an accident. In falling he struck upon an iron water spout which projected a few inches above the sidewalk, and which left external, visible marks upon his head and face, in the form of abrasions or bruises not supposed at the time to be of a serious character. He died from 15 to 20 minutes after the accident, and was buried without any careful examination into the cause of death. Three months after interment the body was exhumed and an autopsy made. It then appeared that at the time of the accident the deceased was affected with a diseased condition of the aortic valves and calcification of both coronary arteries. Calcification is a deposit of lime salts in the walls of the tube, making it rigid and fragile, instead of elastic, as it is in health. There was dilation of the heart and hypertrophy. It is unnecessary to go into further details, since the plaintiffs' own expert, who was present at the autopsy, testified that 'the conditions which (he) found in the heart would indicate that the heart was diseased. ' There was much dispute upon the testimony as to what the autopsy disclosed as to the condition of the brain, but on this appeal it must be assumed that there was evidence of injury to the brain, resulting from the blows which left the marks found after his fall.

Before proceeding to discuss the points which are raised by exceptions of the plaintiff in error seasonably taken, it seems appropriate to call attention to a point of practice. Eleven of the exceptions to the charge of the judge, which have been assigned as error, and to which argument has been addressed in the brief, were not taken, as the record shows, until after the jury had retired in charge of a sworn bailiff. This practice has been expressly condemned by the supreme court in Hickory v. U.S., 151 U.S. 316, 14 Sup.Ct. 334, and by this court (Park Bros. & Co. v. Bushnell, 9 C.C.A. 140, 60 F. 583), for reasons which may be found therein set forth. If, as plaintiff in error suggested on the oral argument, this was by the express direction of the trial judge, who thus deprived plaintiff in error of the opportunity to take its exceptions at the proper time, that fact should have been set forth in the record, and we might afford proper relief. But, in the absence of anything to indicate such a departure from the well-settled practice, we must assume that this case is in that respect on all fours with Park Bros. v. Bushnell, supra, and dispose of these 11 exceptions in the manner indicated in that case. Fortunately for plaintiff in error, the exceptions which were properly reserved sufficiently present the points it has argued in this court.

Inasmuch as it is conceded that Fulton was affected with a serious disease of the heart at the time of the accident, defendant contends that his beneficiaries were not entitled to recover, and that verdict should have been directed for defendant. It is insisted that the conditions of the policy were expressly designed to meet just such a case, and to avoid all controversy between medical experts as to the relative potency of external and internal conditions causing death; that it was designed to take the place of medical examinations into the physical condition of members, each member stipulating that if he was affected by a rotten heart, or Bright's disease, or an incipient cataract, or other disease which might be calculated to increase his risk or injury, or his risk of damage from injury, he would not call upon the association for relief. The language of the condition referred to is:

'The insurance under this contract shall not * * * extend to or cover accidental injuries or death resulting from or caused directly or indirectly, wholly or in part, by hernia, fits, vertigo, somnambulism or disease in any form, or while effected thereby.'

The sentence is ungrammatical, and the last clause meaningless, as may be seen from the following analysis:

Insurance under this contract shall not cover

A. Accidental injuries or death resulting from or caused, directly or

indirectly, wholly or in part, by

1. Hernia.

2. Fits.

3. Vertigo.

4. Somnambulism.

5. Disease in any form.

B. Accidental injuries or death while effected by

1. Hernia.

2. Fits.

3. Vertigo.

4. Somnambulism.

5. Disease in any form.

If the word 'while' were given the meaning it sometimes has, viz. 'when,' the word 'effected' would qualify the antecedent 'accidental injuries or death,' and the whole sentence would be grammatically accurate; but, if so construed, clause B would mean no more than clause A. To give to the clause the meaning for which defendant contends, it would be necessary to change the word 'effected' to another word, with a different meaning, viz. 'affected.' It may very well be that it was the intention of the defendant to print the latter word in its forms of policy, but that does not change the situation. This is an action at law upon the contract as it was made and executed, not a suit in equity to reform the contract, fortified with evidence appropriate to such a prayer for relief, and we must take the contract as we find it. Upon familiar principles, all its ambiguities and obscurities are to be resolved against the draftsman.

Although no meaning more favorable to the defendant can be spelled out of the last clause, the residue of the sentence contains a perfectly plain, unambiguous, and explicit statement, in harmony with all the other provisions of the policy. The insurer is not to respond when death is caused directly or indirectly by disease, nor when it is caused in part by disease. In other words, when the accident (such as a fall) which causes the death was itself caused by some disease, or when an existing disease co-operates with the accidental injuries to cause the death, or when the accidental injuries are of such a character that they would not cause the death of a person in normal health, but do kill the insured, because an existing disease, unknown to the insurer, unknown perhaps to the insured, has put him into such an abnormal condition that he is unable to resist the effects of the injuries as he would if in normal health,-- in none of these cases is the insurer liable. The true construction of a clause providing that a policy shall not cover 'death or disability resulting wholly or in part, directly or indirectly * * * from disease or bodily infirmity,' is found admirably expressed in the opinion of the circuit court of appeals for the Eighth circuit in Association v. Shryock, 20 C.C.A. 5, 73 F. 775:

'If he sustained an accident, but at the time it occurred he was suffering from a pre-existing disease or bodily infirmity, and if the accident would not have caused the death if he had not been affected with the disease or infirmity, but he died because the accident aggravated the effects of the disease, or the association should not be liable for the amount of the insurance. The death in such a case would not be the

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