Commonwealth Casualty Co. v. Aichner

• Decision Date: 05 April 1927
• Docket Number: No. 7525.,7525.
• Citation: 18 F.2d 879
• Parties: COMMONWEALTH CASUALTY CO. v. AICHNER.
• Court: U.S. Court of Appeals — Eighth Circuit

18 F.2d 879 (1927)

COMMONWEALTH CASUALTY CO. v. AICHNER.^*

No. 7525.

Circuit Court of Appeals, Eighth Circuit.

April 5, 1927.

Walter L. Roos, of St. Louis, Mo. (Thomas H. Cobbs, George B. Logan, Charlton A. Alexander, and James V. Dunbar, all of St. Louis, Mo., on the brief), for plaintiff in error.

Walter H. Saunders, of St. Louis, Mo. (John S. Leahy, Lambert E. Walther, Harold F. Hecker, and Lyon Anderson, all of St. Louis, Mo., on the brief), for defendant in error.

Before STONE and VAN VALKENBURGH, Circuit Judges, and TRIEBER, District Judge.

VAN VALKENBURGH, Circuit Judge.

Defendant in error is the widow of one R. F. Aichner, who was drowned while swimming on August 10, 1924. June 16, 1924, plaintiff in error issued to the deceased the policy of insurance upon which this suit is founded. That policy, on its face, is called "Peerless Special Ten-Dollar Accident and Sickness Policy." In consideration of a premium payment of $10, plaintiff in error undertook to insure the husband of defendant in error for the term of one year "against the effects of bodily injuries caused directly, solely, and independently of all other causes by external, violent, and accidental means, which bodily injuries or their effects shall not be caused wholly or in part, directly or indirectly, by any disease, defect, or infirmity, and which shall from the date of the accident result in continuous disability and also against the effects of sickness, as follows:

                                   "Section A. Accidents Benefits
                                                   Value First    Annual Increase    Value After Fifth
                                                    Year under         under             Year under
                                                    Section A        Section A           Section A
                  For loss of life ............... $5,000.00       $500.00            $7,500.00
                  For loss of both hands
                   by complete severance
                   at or above the wrists ........  3,500.00        350.00             5,250.00
                  For loss of both feet by
                   complete severance at
                   or above the ankles ...........  3,500.00        350.00             5,250.00
                  For loss of one hand and
                   one foot by complete
                   severance as defined
                   above .........................  3,500.00        350.00             5,250.00
                  For loss of entire sight
                   of both eyes, if irrecoverably
                   lost ..........................  3,500.00        350.00             5,250.00
                  For loss of either hand
                   by complete severance
                   at or above the wrist .........    875.00         87.50             1,312.50
                  For loss of either foot
                   by complete severance
                   at or above the ankle .........    875.00         87.50             1,312.50
                  For loss of entire sight
                   of one eye, if irrecoverably
                   lost ..........................    375.00         35.00               550.00
                

— resulting within thirty days from date of accident solely from such injuries, which shall have caused continuous total disability from date of accident to date of loss, but only when such injuries are sustained.

"WHILE TRAVELING as a passenger in a place regularly provided for passengers, within any common carrier's public passenger conveyance (animals, aerial machines, or conveyances excepted), but only when such injuries are sustained by reason of the wrecking of such conveyance."

Section B provides indemnity of $50 per week, not exceeding 10 consecutive weeks, for loss of time for injuries sustained in the same manner as provided in section A.

Section C provides indemnity of $25 per week, not exceeding 10 consecutive weeks, for loss of time from injuries sustained in the manner specified in said section C, which differs from that specified in sections A and B.

Section D provides indemnity for the fracture of any bone by accident in or out of business, except such as are covered under sections A, B, or C.

Section E provides hospital benefits resulting from injuries caused by any accident for which no other indemnity is provided by the policy.

Section F agrees to pay for loss of life from any accident not otherwise covered by the policy.

Section G deals with surgeon's fees; section H, with sickness benefits; section I, with emergency benefit, in case the insured is physically unable to communicate with friends.

Section J, under the heading "General Provisions," specifies persons and conditions, employments, etc., not covered by the policy.

Defendant in error brought suit to recover the principal sum of $5,000, being the first year value for loss of life specified under section A above quoted, together with interest and a penalty of $500 for alleged vexatious refusal to pay the said policy, and a reasonable attorney's fee, to be determined at the trial. Plaintiff in error denied liability under section A, and tendered payment of $100 under section F of the policy. A jury was waived in writing and the case was tried to the court upon an agreed statement of facts. Judgment was entered for defendant in error in the sum of $5,000, together with interest aggregating $445.75.

The view of the trial court is summed up in the following language: "I conclude, as a matter of law, that the policy, from some of its language, from its punctuation, and from the manner in which it is printed, is ambiguous, for that it is calculated to deceive those who buy it; that this ambiguity must be construed most strongly against the defendant, and, so considering it, the finding and judgment of the court should be for plaintiff."

The contention of plaintiff in error is that there is no ambiguity in the meaning of the policy, and therefore it is the duty of the court to apply its terms, regardless of whether it be favorable to the one side or the other; further, that where there is any question about punctuation the text or language of the policy must control. The basis of the charge of ambiguity lies entirely in the matter of punctuation. It is the contention of plaintiff in error that the accident benefits conferred by section A are limited and restricted to those sustained "while traveling as a passenger in a place regularly provided for passengers within any common carrier's public conveyance (animals, aerial machines, or conveyances excepted), but only when such injuries are sustained by reason of the wrecking of such conveyances." There is a period after the word "sustained" which precedes the clause just quoted, and it is the insistence of defendant in error, as sustained by the trial court, that section A, above that period, is and was intended to be complete in itself, and that the "while traveling" clause forms no part of and does not limit that section.

It is obvious that the use of the period after the word "sustained" is improper, if the clause beginning with the words "while traveling" is to be read as a part of and limiting the preceding part of the section. However, if this punctuation be disregarded, the section, as a whole, reads intelligently and with reasonable import. If the clauses be segregated in accordance with the contention of defendant in error, neither is complete in itself. The first is abortive, failing to specify the nature of the accident covered by the policy by which the injuries calling for benefits under section A are sustained; the latter becomes a rudderless adverbial modifier, with nothing left to modify. In the course of his memorandum opinion the learned trial judge said: "If, then, the language of section A, above quoted, is decisive, the contention of defendant must be upheld, because the meaning of defendant is clear, and there is no ambiguity to be found in the mere words used in the policy. So, if there be ambiguity, it arises, not from the words employed, but from the punctuation and suggestive and misleading manner of printing section A, as it appears in the policy, and from other language used in the policy."

It is clear then that the alleged ambiguity must arise, if at all, from the punctuation, because, if the policy has been framed in a suggestive and misleading manner, an entirely different principle of law will be applied. If, as the trial court held, the meaning is clear, and there is no ambiguity to be found in the mere words used in the policy, a correct ruling, so far as punctuation plays a part, is clearly indicated, for punctuation alone cannot establish ambiguity. As said by Mr. Justice Blatchford in Joy v. St. Louis, 138 U. S. 1, 32, 11 S. Ct. 243, 251, 34 L. Ed. 843, "I know that the matter of punctuation is never relied upon to defeat the obvious intent; but, when the meaning is doubtful, the punctuation is certainly a matter tending to throw light upon it."

This court, in Holmes v. Phenix Ins. Co. (C. C. A. 8) 98 F. 240, 241, 47 L. R. A. 308, has laid down a rule which has found general acceptance. The case has frequently been cited with approval. We quote:

"But in a contract the words, and not the punctuation, are the controlling guide in its construction. Punctuation is no part of the English language. The Supreme Court say that it `is a most fallible guide by which to interpret a writing.' Ewing's Lessee v. Burnet, 11 Pet. 41, 54, 9 L. Ed. 624. The Century Dictionary tells us, what is common knowledge, that `there is still much uncertainty and arbitrariness in punctuation.' It is always subordinate to the text, and is never allowed to control its meaning. The court will take the contract by its four corners, and determine its meaning from its language, and, having ascertained from the arrangement of its words what its meaning is, will construe it accordingly, without regard to the punctuation marks, or the want of them. The sense of a contract is gathered from its words and their relation to each other, and, after that has been done, punctuation may be used to more readily...