Herdic v. Maryland Casualty Co.

• Decision Date: 06 July 1906
• Docket Number: 21.
• Citation: 146 F. 396
• Parties: HERDIC v. MARYLAND CASUALTY CO.
• Court: U.S. District Court — Middle District of Pennsylvania

146 F. 396

HERDIC v. MARYLAND CASUALTY CO.

No. 21.

United States Circuit Court, M.D. Pennsylvania.

July 6, 1906

At Law. On demurrer to plaintiff's statement.

INSURANCE-- CONSTRUCTION OF ACCIDENT POLICY-- DEATH FROM SEPTICAEMIA.

An accident policy, insuring generally against injuries sustained through external., violent, and accidental means as therein limited, contained the following further clause 'This policy does not cover death or disability resulting from mineral, vegetable, gaseous, or any other kind of poisoning, except as hereinafter stated; but, subject to its conditions, it covers death or disability resulting from septicaemia, freezing, sunstroke, drowning, hydrophobia choking in swallowing, and death only, as the result of an anesthetic while actually undergoing a surgical operation at the hands of a duly qualified physician.' Held, tat such clause must be construed in harmony with the general character of the policy, which was one against accidents that, as so construed, its purpose and effect were to except from the risk death or disability from accidental poisoning in general, and to cover death or disability resulting from septicaemia, freezing, etc., but only when resulting from an accident 'subject to its conditions,' and that the death of the insured from septicaemia resulting from an operation for appendicitis was not within its terms.

John E. Cupp and Clarence E. Sprout, for demurrer.

Seth T. McCormick, for plaintiff.

ARCHBALD District Judge.

This suit is upon an accident policy. The person whose life was insured died of septicaemia, after an operation for appendicitis. This apparently takes the case out of the policy, there being no pretense that death was the result of an accident. It is contended, however, by the plaintiff that, accident or no accident, death by septicaemia is expressly provided for in the policy.

The issue between the parties is thus purely a legal one, and if the defendants are right the case may as well be brought to an end here and now, as sought by the demurrer.

By the policy in suit, the defendant company, in consideration of a premium of $25, undertook to insure Carl Herdic, the plaintiff's husband, 'in the amount of $5,000 principal sum, and $25 weekly indemnity, against bodily injuries, not self-inflicted, sustained by the assured while sane, in the exercise of ordinary care, not under the influence of nor affected by intoxicants or narcotics, and through external, violent, and accidental means, * * * independent of all other causes. ' The death of the assured admittedly did not so result, and, if it is essential to a recovery that it should, the plaintiff has no case, and the demurrer must be sustained.

But the primary undertaking of the company, as so expressed, is made subject to certain further terms and conditions, among which is the following:

'(4) This policy does not cover death or disability resulting from mineral, vegetable, gaseous, or any other kind of poisoning, except as hereinafter stated; but, subject to its conditions, covers death or disability resulting from septicaemia, freezing, sunstroke, drowning, hydrophobia, choking in swallowing, and death only, as to the result of an anesthetic, while actually undergoing a surgical operation at the hands of a duly qualified regular physician.'

The question is as to the purposes and effect of this clause. According to the defendants, it is declaratory merely, not enlarging the grounds of liability as contended by the plaintiff, but, on the contrary, restricting and limiting them. According to the plaintiff, however, it is a new and independent provision, by which, regardless of what has gone before, death from any of the causes enumerated, however it may happen to be brought about, is expressly insured against.

Whatever may be said of the last part of the clause, there is no difficulty with the first of it. By it death as the result of any kind of poisoning is taken out of the policy, it being distinctly declared that, except as therein stated, the company will not be liable therefor. This must, of course refer to accidental poisoning, nothing but death by accident having so far been spoken of; the evident purpose being to relieve the policy from what has proved to be a prolific source of litigation (1 Cyc. 264), poisoning, however caused or induced, being thus put unmistakably beyond its pale. Immediately following this is the provision which is the subject of controversy. By it the policy in terms is made to cover death or disability resulting from septicaemia, freezing, sunstroke, and the rest. So far as septicaemia is concerned, the connection is obvious. This, as is well known, is brought about by the absorption into the blood of putrescent or poisonous matter, and, under the designation of 'blood-poisoning,' might possibly be regarded as excluded, although it has been held to the contrary. Omberg v. United States Mutual Accident Ass'n, 101 Ky. 303, 40 S.W. 909, 72 Am.St.Rep. 413. But when...