Birss v. Order of United Commercial Travelers of America

• Decision Date: 13 November 1922
• Docket Number: 22108
• Citation: 190 N.W. 486,109 Neb. 226
• Parties: CARRIE A. BIRSS, APPELLANT, v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA, APPELLEE
• Court: Nebraska Supreme Court

190 N.W. 486

109 Neb. 226

CARRIE A. BIRSS, APPELLANT, v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA, APPELLEE

No. 22108

Supreme Court of Nebraska

November 13, 1922

APPEAL from the district court for Douglas county: WILLIAM A REDICK, JUDGE. Affirmed.

AFFIRMED.

Baldrige & Saxton, for appellant.

John A Millener and Nolan & Woodland, contra.

Heard before MORRISSEY, C. J., ALDRICH, DAY and FLANSBURG, JJ SHEPHERD, District Judge.

OPINION

FLANSBURG, J.

This was an action by the plaintiff, as beneficiary under an insurance policy, issued upon the life of her husband by the defendant insurance company. The defendant demurred to the petition. The demurrer was sustained and, the plaintiff having elected to stand upon her petition, judgment was entered against her and her suit dismissed. From this judgment she has appealed.

So far as the questions raised here are concerned, the petition sets forth that the insured, Frank J. Birss, "while in the act of examining the flow of an oil well and in attempting to measure the amount of oil in several tanks with a long stick or rake handle, kneeled down inserting his head and arms into the opening of the cover of an oil tank from which the cap had been removed, and then and there was accidentally overcome, bruised, wounded and suffocated by certain poisonous, irritating, noxious and injurious fumes and odors, which arose from said oil and surrounded, engulfed and overcame the said Frank J. Birss. As the direct result whereof the said Frank J. Birss immediately became very sick and ill and his lips became blue and his face colorless and an inflammation of his respiratory organs and of the mucous lining of his lungs was thereby produced, directly leading to and bringing on a congestion of same and pneumonia, and thereby inflicting upon him personal injuries and death by external, violent and accidental means."

A copy of the policy sued on is attached to the petition, and in the policy appears the following exemption: "Benefits * * * shall not cover * * * any death * * * resulting from * * * inhaling of gas or asphyxiation (voluntary or involuntary, conscious or unconscious)."

It is the defendant's contention, as the insured is shown to have died as a result of the inhalation of gas, that the death loss falls within the express exemption provision of the policy, and that the company is not liable.

In answer to this, the plaintiff urges that the petition does not disclose that the insured inhaled gas, the only allegation being that he inhaled certain fumes and odors arising from the oil stored in the tank.

The term "gas" is, in a sense, a generic term and is broad and sweeping in its meaning. In Webster's Unabridged Dictionary it is defined as "an aeriform fluid; a term used at first by chemists as synonymous with air, but since restricted to fluids supposed to be permanently elastic, as oxygen, hydrogen, etc., in distinction from vapors, as steam, which become liquid on a reduction of temperature. In present usage, since all of the supposed permanent gases have been liquefied by cold and pressure, the term has resumed nearly its original signification, and is applied to any substance in the elastic or aeriform state."

We must accept the term according to its common and ordinary meaning. Should we try to limit the meaning in such a way as to distinguish gas from all fumes and vapors, it would be necessary to arrive at some restricted definition which we do not find in common usage, and one which apparently has not been employed in the policy. Matter in the aeriform state having noxious or...