Hawkeye Commercial Men's Ass'n v. Christy

• Decision Date: 12 November 1923
• Docket Number: 6101.
• Citation: 294 F. 208
• Parties: HAWKEYE COMMERCIAL MEN'S ASS'N v. CHRISTY.
• Court: U.S. Court of Appeals — Eighth Circuit

294 F. 208

HAWKEYE COMMERCIAL MEN'S ASS'N v. CHRISTY.

No. 6101.

United States Court of Appeals, Eighth Circuit.

November 12, 1923

F. E Northup, of Marshalltown, Iowa (Robert E. Johnson, of Marshalltown, Iowa, and John N. Hughes, of Des Moines, Iowa on the brief), for appellant.

Charles C. Spencer, of Chicago, Ill. (Charles S. Bradshaw and Casper Schenk, both of Des Moines, Iowa, on the brief), for appellee.

Before SANBORN, LEWIS, and KENYON, Circuit Judges.

SANBORN Circuit Judge.

The defendant below, and so styled hereafter, a mutual insurance association against accidents to its members organized under the laws of Iowa, appeals from a decree of the court below to the effect that it levy upon its members and pay to the plaintiff, Nina Etta Christy, the widow of Albert L. Christy and the beneficiary in his certificate of membership in the defendant, issued on May 18, 1908, $6,725, on account of his death on October 4, 1915, from gases or something taken or inhaled by him.

On October 4, 1915, Mr. and Mrs. Christy were engaged in fumigating a room to destroy insects. They placed four sulphur candles on a tin dustpan in the room and poured some alcohol over them. Mrs. Christy lighted two of them and came out of the room. Mr. Christy was lighting the other two at the same time that his wife was lighting hers, but he did not finish lighting his until a little after she came out of the room. Then he came out coughing and sneezing very violently soon fell down, and subsequently during that day he died. The court below found that the proximate cause of his death was the taking or inhaling into his system of the fumes or gases produced in the room he was fumigating, and the record leaves no doubt of the correctness of this conclusion.

Counsel for the defendant insisted, and still insist, that death from such a cause, and consequently this death, is, by the terms of the certificate of membership, expressly excepted from the deaths it agreed by that certificate to indemnify the beneficiary against, and in support of that contention cites and relies upon this provision of the certificate:

' * * * Nor shall the association be liable for indemnity for any death resulting wholly or in part from poison, poison ivy, poisonous substances, gases or anything accidentally, or otherwise, taken, administered, absorbed, injected, inserted or inhaled.' Counsel for the plaintiff contended that a death 'resulting wholly or in part from * * * gases or anything accidentally, or otherwise, taken * * * or inhaled' did not fall within this exception, unless the gas or anything taken or inhaled was voluntarily and consciously taken or inhaled, or 'consciously and by an act of volition drawn into the system by inspiration. ' Fidelity & Casualty Co. v. Waterman, 161 Ill. 632, 636, 44 N.E. 283, 32 L.R.A. 654. And the decisive question in this case is: Was the death of Mr. Christy, which resulted 'from poisonous substances, gases or anything accidentally, or otherwise, taken * * * or inhaled' by him, within or without the exception quoted?

The court below declared that, if this were an original question, it would be inclined to hold that the death in this case was within the exception, but that in view of the following authorities it would enter a decree for the plaintiff. In the year 1889 the Court of Appeals of New York, in an action on an accident policy of insurance which provided that the insurance should not extend 'to any death or disability which may have been caused * * * by the taking of poisonous substances, or inhaling of gas,' and the assured was found dead in his bedroom in a hotel, held that such a death was not within the exception, because it was limited to death from the voluntary and conscious inhaling of gas, and the inhaling in that case was unconscious and involuntary. Paul v. Travelers' Ins. Co., 112 N.Y. 472, 478. 20 N.E. 347, 3 L.R.A. 443, 8 Am.St.Rep. 758. This construction of such exceptions as that in the Paul Case has been followed in cases wherein the deceased, while sleeping, unconsciously inhaled gas which caused his death in Fidelity & Casualty Co. v. Waterman, 161 Ill. 632, 635, 44 N.E. 283, 32 L.R.A. 654; Travelers' Ins. Co. v. Ayers, 217 Ill. 390, 75 N.E. 506, 2 L.R.A. (N.S.) 168; Menneily v. Employers' Liability Co., 148 N.Y. 596, 600, 43 N.E. 54, 31 L.R.A. 686, 51 Am.St.Rep. 716; Fidelity & Casualty Co. v. Lowenstein, 97 F. 17, 38 C.C.A. 29, 46 L.R.A. 450. A similar construction was given to a like exception, where the deceased died from unconsciously inhaling poisonous gas in a well into which he had descended to fix a pump, Pickett v. Insurance Co., 144 Pa. 79, 89, 91, 22 A. 871, 13 L.R.A. 661, 27 Am.St.Rep. 618; to a like exception of death from taking poison where the deceased came to his death by drinking carbolic acid for water by mistake in Travelers' Ins. Co. v. Dunlap, 160 Ill. 642, 643, 43 N.E. 765, 52 Am.St.Rep. 355; and to a case where by mistake the deceased drank chloral for distilled water in Metropolitan Accident Association v. Froiland, 161 Ill. 30, 36, 43 N.E. 766, 52 Am.St.Rep. 359.

A careful reading and thoughtful consideration have been given to the opinions in these and other cases, in order to determine whether the facts of the case in hand bring the death in this case clearly within the express exception in the certificate in suit. The terms of that exception differ radically from the terms of the exception in the leading case of Paul v. Travelers' Ins. Co., 112 N.Y. 472, 478, 20 N.E. 347, 3 L.R.A. 443, 8 Am.St.Rep. 758, the opinion in which is so sedulously followed in the other cases cited above. The opinion in that case was rendered before the Supreme Court so sharply called a halt to the tendency at that time to treat contracts of insurance as a separate class, to be interpreted by the rule that, if the meaning of the contract were doubtful, the construction should be adopted which was most favorable to the assured, and to be assiduous to discover such a doubt. The decision in the Paul Case was rendered in 1889. In 1893 in Imperial Fire Ins. Co. v. Coos County, 151 U.S. 452, 462,463, 14 Sup.Ct. 379, 38 L.Ed. 231, the Supreme Court in positive and vigorous language declared and enforced these rules:

(a) 'That contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and, if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary, and popular sense.' 151 U.S. 463, 14 Sup.Ct. 381, 38 L.Ed. 231.

(b) 'For a comparatively small consideration the insurer undertakes to guarantee the insured against loss or damage, upon the terms and conditions agreed upon, and upon no other, and when called upon to pay, in case of loss, the insurer, therefore, may justly insist upon the fulfillment of these terms. If the insured cannot bring himself within the conditions of the policy, he is not entitled to recover for the loss. * * * It is immaterial to consider the reasons for the conditions or provisions on which the contract is made to terminate, or any other provision of the policy which has been accepted and agreed upon. It is enough that the parties have made certain terms conditions on which their contracts shall continue or terminate. The courts may not make a contract for the parties. Their function and duty consist simply in enforcing and carrying out the one actually made.' 151 U.S. 462, 14 Sup.Ct. 381, 38 L.Ed. 231.

The opinions of the state courts, cited and considered, are entitled to and have received great respect and consideration, but they are not controlling authority in the federal courts on a question of commercial or general law, such as that presented by this suit. Nor do they relieve the members of this court from the duty of forming, declaring, and enforcing their own independent judgment upon it.

'It is not only the privilege, but the duty, of the federal courts, imposed upon them by the Constitution and statutes of the United States, to consider for themselves, and to form their independent opinions and decisions upon, questions of commercial or general law presented in cases in which they have jurisdiction, and it is a duty which they cannot justly renounce or disregard. Jurisdiction of such cases was conferred upon them for the express purpose of securing their independent opinions upon the questions arising in the litigation remitted to them. And a citizen of the United States who has the right to prosecute his suit in the...