Barnes v. North American Acc. Ins. Co.

• Decision Date: 13 July 1954
• Citation: 107 A.2d 196,176 Pa.Super. 294
• Parties: BARNES v. NORTH AMERICAN ACC. INS. CO.
• Court: Pennsylvania Superior Court

107 A.2d 196

176 Pa.Super. 294

BARNES v. NORTH AMERICAN ACC. INS. CO.

Superior Court of Pennsylvania.

July 13, 1954

Action against insurer to recover proceeds of policy covering death from accidental means. The Court of Common Pleas, Lancaster County, No. 6, October Term, 1952, Joseph B. Wissler, J directed verdict for plaintiff and defendant appealed. The Superior Court, No. 15, October Term, 1954, Gunther, J., held that where exclusion clause of policy was so worded as to give rise to several interpretations, with result that clause was a virtually meaningless phrase, clause would be construed in favor of insured in order not to defeat, without plain necessity, the claim to indemnity which it was insured's object to obtain.

Judgment affirmed.

In action against insurer to recover proceeds of policy covering death from accidental means, burden was upon insurer to establish that insured's accident was excluded by the policy.

F. Lyman Windolph, Windolph & Johnstone Lancaster, for appellant.

Richard A. Snyder, Paul A. Mueller, Lancaster, for appellee.

Before RHODES, P. J., and HIRT, ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, JJ.

GUNTHER Judge.

This is a claim arising from the interpretation of a policy of insurance covering injury or death from accidental means. The court below entered a directed verdict for the plaintiff for the full amount of the policy.

This appeal involves an exclusion in the policy which reads as follows: ‘ This policy does not cover the Insured * * * for any loss resulting from injuries, fatal or non-fatal, except drowning of which there shall be no visible mark or contusion on exterior of the body at the place of injury, the body itself in case of death not to be deemed such.’ The decedent admittedly died from asphyxiation. The defendant first filed a demurrer to the complaint because the plaintiff had not averred the existence of visible marks or contusions as set forth in the exclusion clause. The demurrer was overruled and the defendant filed an answer admitting the material allegations of the complaint but alleging as new matter that the death did not result from an injury exhibiting a visible mark or contusion. The directed verdict for plaintiff was entered after the defendant's offer of proof of absence of visible marks was denied.

The court below held that the exclusion clause was ambiguous and meaningless. The two possible interpretations were held to be either than any injury, except drowning, is excluded if unaccompanied by visible marks or contusions, or that no...