Bernays v. United States Mut. Acc. Ass'n

• Decision Date: 16 March 1891
• Citation: 45 F. 455
• Court: U.S. District Court — Eastern District of Missouri
• Parties: BERNAYS v. UNITED STATES MUT. ACC. ASS'N OF NEW YORK.

45 F. 455

BERNAYS v. UNITED STATES MUT. ACC. ASS'N OF NEW YORK.

United States Circuit Court, E.D. Missouri, Eastern Division.

March 16, 1891

Drummond & Hicks, for plaintiff.

Wm. C & J. C. Jones, for defendant.

THAYER J.

This is a suit on an accident policy of insurance issued to plaintiff's testator. By the policy the deceased was insured 'against personal bodily injuries effected * * * through external violent, and accidental means, ' and 'against death resulting from said injuries alone, and within ninety days ' The petition avers that the deceased, who was a physician and surgeon, while examining a patient 'accidentally cut and lacerated one of his fingers with forceps then being used, and by reason and means of said accidental injuries to his finger * * * became thereupon afflicted with the disease of erysipelas, and died * * * within thirty days after the time of said injury, and that death resulted alone from said injury. ' The answer admits, among other things, that the deceased accidentally cut and lacerated his finger as alleged, and that he became afflicted with erysipelas, and died at the time stated. Several matters are then pleaded by way of defense, to which the plaintiff demurs.

1. The first paragraph to which objection is taken alleges that in and by his contract with the insurer the deceased warranted 'that he had never had, and had not then, any bodily or mental infirmity, whereas in truth * * * said deceased had on various occasions prior thereto been afflicted with, and was then subject to and afflicted with erysipelas, * * * and that he eventually died of erysipelas. ' This paragraph of the answer cannot be regarded merely as a denial of the fact alleged in the petition that the testator's death was due to accident. It is not good pleading, if so intended. It was evidently pleaded as a substantive defense, and must be so treated. The question accordingly rises whether the warranty that the deceased 'had never had, and had not then, any bodily or mental infirmity,' was broken, and the contract avoided, by the fact that he had had and was subject to erysipelas; and this involves a consideration of the scope of the warranty. An 'infirmity' was defined by Webster 'is an imperfection or weakness, especially a disease; a malady. ' Giving to the words, have, any infirmity of mind or body that would increase the risk of flesh is heir to, and the result would be a warranty that the deceased had never had any disease, no matter how trivial or temporary. Such a construction of the warranty is too unreasonable to be tolerated. The insurer had no conceivable motive for questioning the deceased as to all human ailments, whether incidental to youth, manhood, or old age. Some limitation of the terms of the warranty is necessary to make it conform to what must be presumed to have been the intent of the parties. As the insurance was against accident, and death...