Safe Deposit & Trust Co. v. New York Life Ins. Co.

• Decision Date: 04 May 1936
• Docket Number: No. 5662.,5662.
• Citation: 14 F. Supp. 721
• Parties: SAFE DEPOSIT & TRUST CO. OF BALTIMORE v. NEW YORK LIFE INS. CO.
• Court: U.S. District Court — District of Maryland

14 F. Supp. 721

SAFE DEPOSIT & TRUST CO. OF BALTIMORE v. NEW YORK LIFE INS. CO.^*

No. 5662.

District Court, D. Maryland.

May 4, 1936.

Charles G. Page, of Baltimore, Md., for plaintiff.

John T. Tucker, of Baltimore, Md. (Keech, Carman, Tucker & Anderson, of Baltimore, Md.), for defendant.

CHESNUT, District Judge.

In this case, which has been removed to this court from the Court of Common Pleas of Baltimore City, the jurisdiction here being based on diverse citizenship, the plaintiff is suing to recover the sum of $50,000, being the total amount alleged to be due under the double indemnity feature alone of three separate insurance policies issued on the life of Clifford E. Whitaker, the insured, and payable to the plaintiff as beneficiary therein named. The defendant has demurred to the second, third and fourth counts of the declaration on the ground that it appears therefrom that the circumstances attending the death of the insured, Clifford E. Whitaker, as alleged in the respective counts, brings the case under the provision of one of the excepted risks in the policy as to double indemnity. These counts of the declaration as drawn include also a demand for single indemnity payable in the event of the death of the insured irrespective of accident as the cause of death, which is the condition on which the promise to pay double indemnity is based. But it has been stipulated by counsel in the case that after the suit was brought the defendant paid the single indemnity which was accepted by the plaintiff without prejudice to its right to continue the suit for the balance alleged to be due under the double indemnity clause. It would possibly have been more appropriate if the counts of the declaration had been amended to meet the changed situation, but the defendant in support of the technical correctness of its demurrer contends that notwithstanding the claim in the counts of the declaration for both the single and double indemnity, nevertheless each count is demurrable "because there is an established rule of pleading that if any entire pleading is bad in substance as to part, it is bad for the whole." Poe on Pleading and Practice (in Maryland), Vol. I, § 611. It may be doubted if the rule so stated is technically applicable to the present pleadings, but the plaintiff's counsel acquiesces in the contention, and both counsel agree that the sole question presented by the demurrer is whether the facts and circumstances as set forth in the second, third and fourth counts of the declaration make a case entitling the plaintiff to recover the double indemnity feature of the policies. And the question has been submitted to the court on this basis for determination. Both parties agree that the pleadings appropriately present this single question of law which it is understood will be determinative of the whole case.

Each of the counts demurred to alleges that the double indemnity became payable "if such death of said insured resulted directly and independently of all other causes from bodily injury solely through external violent and accidental means and occurred within ninety days after such injury," and the said policies further provided as follows:

"Double indemnity shall not be payable if the Insured's death resulted from self-destruction, whether sane or insane; from the taking of poison or of inhaling gas, whether voluntary or otherwise; from committing an assault or felony; from war or any act incident thereto; from engaging in riot or insurrection; from participation as a passenger or otherwise in aviation or aeronautics; or, directly or indirectly, from infirmity of mind or body, from illness or disease, or from any bacterial infection other than bacterial infection occurring in consequence of accidental and external bodily injury. The Company shall have the right and opportunity to examine the body and to make an autopsy unless prohibited by law." (Italics supplied.)

Each count further alleges as follows:

"That while said policy was in force and effect as aforesaid, to wit, on the 24th day of January, 1935, said Clifford E. Whitaker, died at the City of Victoria, Province of British Columbia, Canada; that said death resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means within 90 days after such injury, in the following manner, to wit, the said Clifford E. Whitaker died of asphyxiation from gas and fumes escaping from a lighted gas heater while the said deceased was asleep in a hotel room."

It will be noted that one of the excepted risks with respect to the payment of double indemnity in the case of accidental death was "if the insured's death resulted * * * from the taking of poison or of inhaling gas, whether voluntary or otherwise."

It is the defendant's contention that the circumstances of the insured's death as alleged in the declaration brings the case squarely within the language of this excepted risk. The plaintiff's contention is that "the established meaning of the phrase `to inhale gas' is limited to the act of breathing in gas; that the phrase `voluntary or otherwise' does not extend the meaning of inhalation to include the unconscious reflex of breathing gas while asleep."

In my opinion the plaintiff's contention is not tenable either on authority, or principle and reason. It is true the declaration does not specifically say that the insured's death resulted from "inhaling of gas" but what is alleged is tantamount thereto. The averment is that the insured "died of asphyxiation from gas and fumes escaping from a lighted gas heater while the said deceased was asleep in a hotel room." "Asphyxia" is defined in Webster's New International Dictionary as, "Apparent death, suspended animation, in living organisms, due to deficiency of oxygen and excess of carbon dioxide in the blood, as in interruption of respiration from suffocation or drowning, or from the inhalation of irrespirable gases." It is obviously meant by the declaration that the insured went to sleep in a room in which ordinary illuminating or heating gas (which it is well known contains carbon dioxide) was escaping from a lighted gas heater, and the gas and fumes were by the insured breathed into his lungs by the ordinary normal process of respiration while he was asleep. It was conceded in argument by plaintiff's counsel that this was the meaning of the declaration. And it is really not disputed by him that the insured's death was due to the physical breathing in or inhalation of the gas; his contention being that the facts as stated did not constitute, in the legal sense only, an inhalation by the insured within the meaning of that term as used in its context in the policy. Or, in other words, his contention is that breathing illuminating gas by the insured when asleep did not constitute inhalation thereof within the meaning of the policy, because it was not a voluntary, conscious and intentional act of the insured. This legal contention is based principally on the case of Paul v. Travelers' Ins. Co., 112 N.Y. 472, 20 N.E. 347, 348, 3 L.R.A. 443, 8 Am.St.Rep. 758, where the excepted risk in a life policy as to the additional clause for disability because of bodily injury caused by external violent and accidental means, was, phrased as follows:

"By the taking of poison, contact with poisonous substances, or inhaling of gas."

The court there held that the exception as phrased must be construed to mean "a voluntary and intelligent act by the insured, and not an involuntary and unconscious act" and therefore death by asphyxiation from illuminating gas while the insured was asleep was covered by the policy. A similar principle of construction of policies so worded, either with the same or similar language, was followed thereafter in a number of other cases, notably Menneiley v. Employers' Assur. Corporation, 148 N.Y. 596, 43 N.E. 54, 31 L.R.A. 686, 51 Am.St.Rep. 716; Fidelity & Casualty Co. v. Waterman, 161 Ill. 632, 44 N.E. 283, 32 L.R.A. 654; Fidelity & Casualty Co. v. Lowenstein (C. C.A.8) 97 F. 17, 46 L.R.A. 450. It was doubtless in consequence of this line of decisions that the phraseology of the exception in the instant case, and that of similar policies of other companies, was changed and broadened to exclude liability for death caused by "inhaling of gas, whether voluntary or otherwise." Thus it is said in Richards on Insurance (4th Ed.) § 405:

"The words `inhaling gas' have been construed as applying to an intentional, voluntary or conscious act of the insured. Hence in some policies the exception has been further strengthened by the addition of the words `voluntary or involuntary.'"

There are apparently only three reported decisions construing and applying policies with excepted risks worded exactly as in the instant case. Each of the decisions is adverse to the plaintiff's contention. In each the death of the insured was due to asphyxiation by carbon monoxide gas from an automobile. In all the cases the deaths were concededly accidental but recovery of the double indemnity feature on the policies was denied. Two of the cases were against this same defendant. They are all quite recent. King v. New York Life Ins. Co., 72 F.(2d) 620, 622 (C.C.A.8); Diamond v. New York Life Ins. Co. (App.Div.) 286 N.Y.S. 625, 626, decided March 27, 1936; Northern Trust Co. v. Central Life Ins. Co., 274 Ill.App. 551 (certiorari denied by Supreme Court of Illinois, October 23, 1934). The opinion in the King Case by Circuit Judge Booth very comprehensively considers the subject matter and reviews the more important prior cases upon the subject. It notes and answers the several contentions advanced in this case by the plaintiff. It was said:

"The contention of appellant is that the insured `did not inhale said gas within the meaning of said exception, nor was said gas taken voluntarily or in any other intentional manner; but that the evidence showed that the...