Aetna Life Ins. Co. v. Portland Gas & Coke Co.

• Decision Date: 07 February 1916
• Docket Number: 2646.
• Citation: Aetna Life Ins. Co. v. Portland Gas & Coke Co., 229 F. 552 (9th Cir. 1916)
• Parties: AETNA LIFE INS. CO. v. PORTLAND GAS & COKE CO.
• Court: U.S. Court of Appeals — Ninth Circuit

229 F. 552

AETNA LIFE INS. CO. v. PORTLAND GAS & COKE CO.

No. 2646.

United States Court of Appeals, Ninth Circuit.

February 7, 1916

Policy insuring against loss on account of bodily injuries accidentally suffered by employes held to cover damages caused by employes contracting typhoid fever from drinking water.

Senn Eckwall & Recken, of Portland, Or., for plaintiff in error.

John A Laing and H. W. Strong, both of Portland, Or., for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and RUDKIN, District Judge.

ROSS Circuit Judge.

The defendant in error Gas & Coke Company, being engaged in the construction of a gas plant on its property adjoining the government moorings in Multnomah county, Or., and having employed in the work a large number of men, secured from the plaintiff in error Insurance Company a policy entitled by the latter 'Contractor's Employers' Liability Policy,' by which, in consideration of certain premiums which the case shows the defendant in error paid, it agreed to indemnify the assured (within certain amounts within which the present case falls) against loss and expense arising or resulting from claims upon the assured for damages on account of bodily injuries or death accidentally suffered, or alleged to have been suffered, by an employe or employes of the assured by reason of the business as described and conducted at the locations named in the policy, with certain exceptions not applicable here.In the course of the work certain of the employes of the Gas & Coke Company contracted typhoid fever from the water furnished them by the latter, on account of which that company was compelled to pay damages to such injured employes, to recover the aggregate amount of which from the Insurance Company the present action was brought.And the sole point here presented is whether the harm so done to the workmen constituted a bodily injury accidentally received or suffered by them, within the meaning of the policy in question.

Of course it is not and cannot be doubted that the workmen were bodily injured by the drinking of the water in the course of the work, for it contained typhoid germs, which gave them typhoid fever; but it is insisted on the part of the plaintiff in error that in drinking the water they were but satisfying a natural want, and that in doing so there was no accident about it.It is readily conceded, of course, that there could be no accident in merely drinking water; but it is just as certain that the men would not have drunk it, had they known that the water contained typhoid germs.The accident consists in that unexpected happening.Among the definitions of the word 'accidental,' in most, if not in all, of the dictionaries, is the happening of 'something unexpectedly, unintentionally.'Suppose instead of containing typhoid germs, as in the present case, the water that the employes of the assured consumed had contained some of the most virulent poisons, would any one contend that the injuries resulting therefrom could not be properly held to have been accidentally inflicted?We think not, and yet, in our opinion, there is no substantial distinction between the case supposed and the case at bar.

The policy involved in the case of H. P. Hood & Sons v Maryland Casualty Company,206 Mass. 223, 92 N.E. 329, 30 L.R.A. (N.S.) 1192, 138 Am.St.Rep. 379, was...