Kane v. Order of United Commercial Travelers of America

• Decision Date: 02 April 1940
• Docket Number: 27733.
• Citation: 100 P.2d 1036,3 Wn.2d 355
• Parties: KANE v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA.
• Court: Washington Supreme Court

100 P.2d 1036

3 Wn.2d 355

KANE v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA.

No. 27733.

Supreme Court of Washington

April 2, 1940

Department 1.

Action by Tracy M. Kane against the Order of United Commercial Travelers of America on an insurance certificate issued by defendant to Thomas E. Kane. From a judgment entered upon a verdict for plaintiff, defendant appeals.

Affirmed.

In beneficiary's action on certificate insuring against accidental death but exempting insurer from liability for losses due to an "infection", where insured died from lobar pneumonia after receiving accidental injury, and certificate did not indicate that "infection" was used in a medical sense, an instruction that if pneumonia was induced by, and was immediate and proximate result of operation, verdict should be for beneficiary, unless pneumonia was an "infection" under exception in certificate, was not erroneous.

Appeal from Superior Court, Snohomish County Lloyd L. black, judge.

Skeel McKelvy, Henke, Evenson & Uhlmann, of Seattle, for appellant.

Gordon D. Eveland and Clarence J. Coleman, both of Everett, for respondent.

SIMPSON, Justice.

This is an action brought by the beneficiary of an insurance certificate issued by defendant to Thomas E. Kane. The case was tried to a jury. At the conclusion of the trial the defendant challenged the sufficiency of the evidence to sustain any verdict or judgment, for plaintiff, and moved for a directed verdict in favor of defendant. The court denied the motion.

The jury returned a verdict for plaintiff. Defendant presented motions for judgment notwithstanding the verdict or for a new trial, which were denied. Judgment was entered upon the verdict, and defendant has appealed.

The assignments of error are (a) failure to grant the motion for a directed verdict; (b) failure to grant a judgment n. o. v or a new trial; (c) in the admission of certain testimony; and (d) in the giving of two instructions.

The facts favorable to respondent are as follows: Appellant, an Ohio corporation, is composed of various lodges, called 'Councils,' located in various states of the Union, including Washington. It issues certificates of insurance to indemnify its members for disability or death resulting from accidental means. Thomas E. Kane was a member of Everett Council No. 487 of Everett, Washington. March 20, 1922, defendant issued to him an insurance certificate under the terms of which his beneficiary, respondent herein, was entitled to receive the sum of five thousand dollars in the event of the accidental death of the insured. Respondent waived all claim for recovery in excess of three thousand dollars.

The portions of the certificate relevant to the questions involved in this appeal are as follows:

'Art. IV, Sec. 4. * * * Class A. Insured members shall be indemnified in accordance with the terms hereinafter set out in this Article, against the results of bodily injury hereinafter mentioned, effected solely through external, violent and accidental means, herein termed the accident, which shall be occasioned by the said accident alone and independent of all other causes.

* * *

* * *

'Art. IV, Sec. 9. * * * Nor shall the Order be liable to any person for any benefit for death, disability, loss of time, or any of the losses specified in Items 3 to 10 of Sections 4 and 5 of this Article resulting from war or riot, riding or driving a motor vehicle in a race, fighting, violation of any law, intentionally self-inflicted injuries (fatal or otherwise), self-destruction (while sane or insane), murder or disappearance, injuries intentionally inflicted by others, resulting in death, or from voluntary exposure to unnecessary danger or to over-exertion (unless in an effort to save human life), or medical mechanical or surgical treatment (except where the surgical treatment is made necessary by the accident), nor for any accident (fatal or otherwise), to a member who is in any degree under the influence of or in consequence of having been under the influence of intoxicating liquor, alcohol or narcotics.

'Nor shall the Order be liable to any person for any benefits for death disability, loss of time, or any of the losses specified in Items 3 to 10, inclusive of Sections 4 and 5 of this Article, by reason of any of the following conditions, whether caused by accidental means or not, to-wit: Appendicitis, fits, epilepsy, mental infirmity, ivy poisoning, ptomaine poisoning, or other poisoning, bite or sting of an insect or any infection (unless the infection is introduced into, by or through an open wound, which open wound must be caused by external, violent and accidental means and be visible to the unaided eye), inhaling of manufactured or natural gas, carbon monoxide poisoning, hydrogen or any other form of gas causing asphyxiation (voluntary or involuntary, conscious or unconscious), veneral disease, cerebral hemorrhage, menigeal hemorrhage, spinal hemorrhage, heat prostration, sun stroke or sunburn.'

The insured received injuries from an accidental fall which aggravated an existing hernia and necessitated a surgical operation January 16, 1937. He made a good recovery until January 21, at which time he contracted lobar pneumonia, from which he died January 26, 1937.

Appellant contends that no recovery can be had under the provisions of the benefit certificate for the reason that the terminal cause of the insured's death was lobar pneumonia, and that, pneumonia being an infection, it is excluded under the exemption clause in the certificate. Appellant maintains that the provision in its certificate, which provides that it will not be liable for any infection, is unambiguous, and that the meaning of the word 'infection' must be determined from a medical standpoint.

The testimony of the physicians showed that the germs which produce pneumonia are found in the respiratory passage of otherwise well individuals, that the performance of an operation and the giving of any general anaesthetic tends to lower bodily resistance to any infectious agent; and that the insured died from the effects of lobar pneumonia contracted during the time he was recovering from the operation for hernia.

Respondent asserts that the word 'infection' must be construed according to the meaning normally ascribed to it by a layman, and argues that 'pneumonia' is not within the popular conception of what that word connotes.

Unless we can agree with respondent in this respect to the extent that this question was one properly to be submitted to the jury, it must be conceded that she cannot recover in this action.

It is the established rule in this and many other states that where a provision of a policy of insurance is capable of two meanings, or is fairly susceptible of two constructions, that meaning and construction most favorable to the insured must be applied, even though the insurer may have intended another meaning because the insurer, and not the insured, is the author of the instrument. Fenton v. Poston, 114 Wash. 217, 195 P. 31; Metropolitan Club v. Massachusetts B. & I. Co., 127 Wash. 320, 220 P. 818; Guaranty Trust Co. v. Continental Life Ins. Co., 159 Wash. 683, 294 P. 585; National Bank of Tacoma v. Aetna Casualty & Surety Co., 161 Wash. 239, 296 P. 831; Dowell, Inc. v. United Pacific Casualty Ins. Co., 191 Wash. 666, 72 P.2d 296; Sills v. Sorenson, 192 Wash. 318, 73 P.2d 798; 12 Am.Jur., Contracts, § 252.

On the other hand, that rule is applied only where there is an unexplained ambiguity in the contract. Miller v. Penn Mutual Life Ins. Co., 189 Wash. 269, 64 P.2d 1050.

Does the certificate in question admit of two constructions? That is, does it carry one meaning to members of the medical profession, and another to the minds of laymen?

We take the view that it does. For the purposes here under consideration the question as to whether lobar pneumonia is infectious must be considered in the light of the ordinary conception and understanding of that disease and not in the light of scientific or technical meanings.

Policies of insurance are prepared by the insurer and sold or issued to individual men and women who consider and understand the words and phrases so employed in their popular sense. Policyholders are not compelled to investigate the technical meaning of the language used in insurance policies. They are justified in depending upon the popular or general meaning of the words and phrases used in the policies.

'The terms used in an accident insurance policy should be understood in their plain, ordinary, and popular sense, rather than in a philosophical or scientific sense.' 1 C.J. 417, § 44.

In Port Blakely Mill Co. v. Springfield Fire & Marine Ins. Co., 59 Wash. 501, 110 P. 36, 40, 140 Am.St.Rep. 863, this court stated: 'The rule of construction must be that the word used is to be construed in its ordinary signification. The legal signification may have been understood by the insurance company when it employed this word, but in order to avail itself of such legal signification, it must appear that the other contracting party also understood it.'

In Guaranty Trust Co. v. Continental Life Ins. Co., supra, we said [159 Wash. 683, 294 P. 587]: 'Again the principle should apply that if two or more constructions can be placed upon a single word such as 'in,' that construction should be adopted most favorable to the insured. The word 'in' is ordinarily accepted and used as an equivalent to the word 'on."

The rule to be followed in cases of this nature is found in Robinson v. Commonwealth Casualty Co., 224 Mo.App 969, 27 S.W.2d 49, 51: 'If words used in a policy are susceptible of two meanings, that which is most favorable to the insured will be allowed by the court. Block v. United...