Chase v. Business Men's Assur. Co. of America

• Decision Date: 18 June 1931
• Docket Number: No. 375.,375.
• Citation: 51 F.2d 34
• Parties: CHASE v. BUSINESS MEN'S ASSUR. CO. OF AMERICA.
• Court: U.S. Court of Appeals — Tenth Circuit

51 F.2d 34 (1931)

CHASE v. BUSINESS MEN'S ASSUR. CO. OF AMERICA.

No. 375.

Circuit Court of Appeals, Tenth Circuit.

June 18, 1931.

Joseph E. Evans, of Ogden, Utah, for appellant.

Solon T. Gilmore, of Kansas City, Mo. (John Gilmore, of Kansas City, Mo., and Thatcher & Young, of Ogden, Utah, on the brief), for appellee.

Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges.

PHILLIPS, Circuit Judge.

This is an action on a policy of health and accident insurance. The amended complaint in part alleged:

"That between June 21, 1929, and July 19, 1929, at Ogden, Utah, said A. Harris Chase was totally and continuously disabled from performing any and every kind of duty pertaining to his occupation, and that on said July 19, 1929, he died, and that said disability and death were caused by typhoid fever which was occasioned by and resulted from bodily injuries effected solely through accidental means, to-wit, by his drinking polluted and contaminated water, to-wit, water containing typhoid bacilli, at Ogden, Utah, on or about June 13, 1929, believing such water to be pure and fit for drinking purposes, being uninformed of the polluted condition of such water and being ignorant of the fact that it contained typhoid bacilli."

The trial court sustained a demurrer to the amended complaint on the ground that it did not state facts sufficient to constitute a cause of action. Plaintiff declined to plead further and the court entered a judgment of dismissal.

The insuring clause of the policy in part provided:

"Business Men's Assurance Company of America hereby insures A. Harris Chase, whose occupation is Manager, against loss resulting from bodily injuries effected solely through accidental means, and against loss resulting from sickness contracted after fifteen days from the date hereof, subject to the provisions and limitations hereinafter contained."

Art. I of the policy provided for temporary or permanent loss of time from sickness.

Art. II provided for temporary or permanent loss of time from bodily injuries.

Art. III in part provided:

"If such injuries shall totally and continuously disable the insured from date of accident from performing any and every kind of duty pertaining to his occupation, and during the period of such continuous total disability, but within five years from date of accident, shall result, independently of all other causes, in any one of the losses enumerated below, or within ninety days from the date of the accident, irrespective of total disability, result in like manner in any one of such losses, the Company will pay the sum set opposite such loss, which sum shall include any claim for disability.

"Indemnity for Loss of Life shall be Payable to Doris M. Chase (wife), Beneficiary.

"Principal sum $5,000.00

"For Loss of — Life The Principal Sum."

Art. VII provided:

"Blood poisoning or septicemia resulting from bodily injuries shall be deemed to be included in said term, bodily injuries."

Art. XII in part provided:

"The accident insurance under this policy does not cover any injury, fatal or otherwise * * * caused directly or indirectly * * * by any disease or medical or surgical treatment therefor. * * * The health insurance under this policy does not cover * * * disability for any period for which the insured has either made claim or may become entitled to indemnity from this or any other company, on account of injuries by accidental means. * * * The term, bodily injuries, wherever used in this policy, shall be understood to be the bodily injuries effected as described in the insuring clause."

It is clear, from the foregoing provisions, that it was intended the policy should insure against disability caused by sickness and by bodily injuries, and for death resulting from "bodily injuries effected solely through accidental means"; and that it should not insure against death resulting from disease.

The rule is well settled in the national courts that contracts of insurance, like other contracts, should be construed according to the sense and meaning of the terms which the parties have used, and that those terms ought to be taken, understood and given effect in their plain, ordinary and popular sense, and that it is only where, because of ambiguity in the language employed, the contract is fairly susceptible of two interpretations — one favorable to the insured and the other favorable to the insurer — that the rule of liberal construction in favor of the insured may be applied. Liverpool & London & Globe Ins. Co. v. Kearney, 180 U. S. 132, 135, 136, 21 S. Ct. 326, 45 L. Ed. 460; Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452, 462, 463, 14 S. Ct. 379, 38 L. Ed. 231; New Amsterdam Casualty Co. v. Central National Fire Ins. Co. (C. C. A. 8) 4 F.(2d) 203, 207-209; Hawkeye Commercial Men's Ass'n v. Christy (C. C. A. 8) 294 F. 208, 211, 40 A. L. R. 46; United States F. & G. Co. v. Centropolis Bank of Kansas City, Missouri (C. C. A.) 17 F.(2d) 913, 53 A. L. R. 295; Firemen's Ins. Co. v. Lasker (C. C. A. 8) 18 F.(2d) 375, 379; United States F. & G. Co. v. McCarthy (C. C. A. 8) 33 F.(2d) 7, 10, 70 A. L. R. 1447; East & West Ins. Co. v. Fidel (C. C. A. 10) 49 F.(2d) 35; United States F. & G. Co. v. Guenther, 281 U. S. 34, 50 S. Ct. 165, 74 L. Ed. 683.

The policy expressly provided that the insurance against loss of life should cover only when death resulted "from bodily injuries effected solely through accidental means" and that the "accident insurance * * * does not cover any injury, fatal or otherwise, * * * caused directly or indirectly * * * by any disease."

Therefore, the question is whether the death of the insured, caused by typhoid fever contracted by drinking water contaminated with typhoid bacilli without his knowledge of such contamination, resulted "from bodily injuries effected solely through accidental means," rather than from disease.

It is difficult, if not impossible, to draw an...