Kennedy v. New York Life Ins. Co

• Decision Date: 08 February 1937
• Docket Number: 32570
• Citation: 178 Miss. 258,172 So. 743
• Court: Mississippi Supreme Court
• Parties: KENNEDY et al. v. NEW YORK LIFE INS. CO

172 So. 743

178 Miss. 258

KENNEDY et al. v. NEW YORK LIFE INS. CO

No. 32570

Supreme Court of Mississippi

February 8, 1937

Division A

Suggestion Of Error Overruled March 22, 1937.

APPEAL from circuit court of Leflore county HON. S F. DAVIS, Judge.

Action by Mrs. Bessie B. Kennedy and others against the New York Life Insurance Company. From a judgment dismissing the action after a demurrer to the declaration was sustained and plaintiffs declined to plead further, plaintiffs appeal. Affirmed.

Affirmed.

H. Talbot Odom, of Greenwood, and Butler & Snow of Jackson, for appellants.

That the death of an insured, by poison intentionally, wilfully and feloniously administered by a third person is within the terms of an insurance policy indemnifying against death resulting from bodily injury effected solely through external, violent and accidental means, is so well settled in this state and elsewhere that we make reference to only a few of the many cases and authorities:

Sovereign Camp, W. O. W. v. Beasley, 169 Miss. 310; Woods v. Provident Life & Acc. Co., 240 Ky. 398; Zurich General Accident & Liability Ins. Co. v. Flickinger, 33 F.2d 853; Fidelity & Casualty Co. v. Johnson, 72 Miss. 333; Holmes v. American-National Ins. Co., 142 Miss. 636; Houston v. Continental Cas. Co., 142 Miss. 389; Provident Life & Acc. Ins. Co. v. McWilliams, 146 Miss. 298; 14 R. C. L. 1238, 1251; 7 A. L. R. 1141.

The principal question is whether the death of an insured by poison intentionally, wilfully and feloniously administered by a third person is within the provision of an exception in an insurance policy excluding liability for death by accidental means where death resulted "from the taking of poison . . . whether voluntary or otherwise."

Had appellee intended to exclude liability for death resulting from the circumstances alleged in the declaration, it might have effectively and without doubt done so by employing any one of three simple provisions quite frequently found in double indemnity clauses of life insurance policies. It might have done so by providing that the double indemnity should not be payable if: (a) the insured's death resulted from intentional injuries inflicted on the insured by a third person; (b) the insured's death resulted from poison administered to the insured by a third person; or (c) the insured's death resulted from poison.

At an early date in this state, and in many other states, it was held that death from intentional injuries inflicted by a third person or by murder were within the general terms of an insurance policy indemnifying against death from bodily injury effected solely through external, violent and accidental means.

Fidelity & Cas. Co. v. Johnson, 72 Miss. 333.

And to avoid liability in such cases, the insurance companies many years ago inserted provisions relieving of liability whether death resulted from the intentional act of another (Houston v. Continental Casualty Co., 142 Miss. 389), which means and includes a death by murder.

Travelers' Ins. Co. v. McConkey, 127 U.S. 661, 32 L.Ed. 308; Joyce on Insurance, sec. 2618; 30 L. R. A. 208; 48 L. R. A. (N. S.) 524; Holmes v. American-National Ins Co., 142 Miss. 636; Life & Acc. Ins. Co. v. McWilliams, 146 Miss. 298.

Now if appellee had intended to exclude liability for the death of the insured caused by murder, it should have by appropriate language said so, and this it has not done.

Paul v. Travelers Ins. Co., 112 N.Y. 472, 3 L. R. A. 443; Pickett v. Pacific Mutual Life Ins. Co., 144 Pa. 79, 13 L. R. A. 661; Fidelity & Cas. Co. v. Waterman, 59 Ill.App. 297; Fidelity & Cas. Co. v. Waterman, 161 Ill. 632, 32 L. R. A. 654.

It seems that, in order to obviate the effect of these decisions, the exemption clauses were by many companies broadened to exclude liability resulting "from poison or anything accidentally or otherwise taken, administered, absorbed or inhaled."

Preferred Acc. Ins. Co. v. Robison, 45 Fla. 625, 61 L. R. A. 145, 33 So. 1005.

Now it will be noted that the policy here involved does not exclude liability for death from poison generally, nor does it exclude liability for death from poison administered to the insured by a third person.

Counsel are driven to the claim that liability is excluded by the exception in the policy which provides "Double Indemnity shall not be payable if the Insured's death resulted . . . from the taking of poison . . . whether voluntary or otherwise." Now it is perfectly clear that the clause quoted does not exclude death from poison in all instances.

Dent v. Railway Mail Assn., 183 F. 840; Sarah v. State, 28 Miss. 267; Johnson v. State, 92 Ga. 36; Blackburn v. State, 23 Ohio St. 146, 162; LaBeau v. Peoples, 34 N.Y. 223; Knights of the Golden Rule v. Ainsworth, 71 Ala. 436, 46 Am. Rep. 332.

An act making the felonious administering of poison criminal includes the act of compelling a person to take poison by acts of violence. Neither deception nor breach of confidence is a necessary ingredient in the act. If the poison reaches the stomach or body of the deceased and does its work of death there, it is immaterial whether force or fraud was the means by which the guilty agent affected his object.

Blackburn v. State, 23 Ohio St. 146.

The word "administer" will be construed to embrace every mode of giving it or causing it to be taken as putting poison in bread.

LaBeau v. People, 34 N.Y. 223; Knights of Golden Rule v. Ainsworth, 71 Ala. 436, 46 Am. Rep. 332.

It must be remembered that the clause is in the nature of an exception and operates to take death from poison under certain circumstances, without the general terms of the policy, and under familiar rules must, therefore, be strictly construed.

Cooley's Briefs on Insurance 5294.

It is a familiar rule that the terms of an accident policy should be understood in the plain, ordinary, usual and popular sense.

Ferguson v. Provident Life & Acc. Ins. Co., 170 Miss. 504; Hart v. North American Accident Ins. Co., 154 Miss. 400; Joyce on Insurance, sec. 216; Southern Home Ins. Co. v. Wall, 156 Miss. 865.

Where the terms of an insurance policy will bear two interpretations, that one will be adopted which sustains the claim for indemnity.

Shivers v. Farmers' Mutual Fire Ins. Co., 99 Miss. 744; New York Life Ins. Co. v. Blaylock, 144 Miss. 541.

It is fundamental that a contract of insurance prepared by the insurance company will be construed liberally against the insured and strictly as against the company.

Boyd v. Miss. Home Ins. Co., 75 Miss. 47; Stephens v. Railway Officials' & Employees' Acc. Assn., 75 Miss. 84; Eminent Household of Columbian Woodmen v. Bunch, 115 Miss. 512; U. S. F. & G. Co. v. Hood, 124 Miss. 548; Home Ins. Co. of New York v. Moore & Rawls, 151 Miss. 189; Southern Home Ins. Co. v. Wall, 156 Miss. 865; Mutual Benefit Health & Accident Assn. v. Blaylock, 163 Miss. 567.

The provisions of an insurance policy should not be construed in favor of the insurer unless clearly required by the policy.

Murray v. Metropolitan Life Ins. Co., 145 Miss. 266.

Policies using chosen language and apt terms to avoid under circumstances specified are construed strictly against the insurer.

New Amsterdam Cas. Co. v. Perryman, 162 Miss. 864; Travelers Ins. Co., v. Dunlap, 160 Ill. 642, 52 Am. St. Rep. 355.

Louis H. Cooke, of New York City, and Watkins & Eager, of Jackson, for appellee.

The circuit judge committed no error in sustaining the appellee's demurrer to the appellant's declaration.

The appellee has the right by contract to limit its coverage.

Lavender v. Volunteer State Life, 171 Miss. 169; Am. Life v. Nidlinger, 113 Miss. 74; Continental Cas. Co. v. Hall, 118 Miss. 871; U. S. F. & G. v. Bank, 150 Miss. 386; So. Home Ins. Co. v. Wall, 156 Miss. 865; Mutual Life v. Meeks, 157 Miss. 97; Georgia Cas. Co. v. Product Co., 159 Miss. 396; New Amsterdam Co. v. Perryman, 162 Miss. 864; Berry v. Lamar Life, 165 Miss. 405; Brotherhood v. Bridges, 164 Miss. 356; Ferguson v. Provident Life, 170 Miss. 504.

The provision involved is clear and explicit and needs no construction.

Webster's New International Dictionary; State v. Stuart, 88 Miss. 406; Lebeau v. People, 34 N.Y. 232; Avert v. State, 277 S.W. 1080; Leafy v. State, 82 S.E. 471; State v. Stapp, 151 S.W. 971; Maryland Cas. Co. v. Hudgins, 64 L. R. A. 349; Dent v. Railway Mail Assn., 183 F. 840.

Every reported case maintains non-liability of the insurer under the facts in this case.

King v. New York Life, 72 F.2d 620; Hawkeye Com. Assn. v. Christy, 294 F. 208; N. Y. Life v. Murrell, 65 F.2d 990; Minner v. Great Western, 162 P. 1160; Miller v. Mercantile Acc. Assn., 153 N.E. 427; Kennedy v. Aetna Life, 72 S.W. 602; Urian v. Scranton Life, 165 A. 21; Northern Trust Co. v. Central Life, 274 Ill. A. 551; Birss v. Travelers of Am., 190 N.W. 486; New Amsterdam Cas. v. Perryman, 162 Miss. 864; Maryland Cas. v. Hudgins, 64 L. R. A. 349; Safe Deposit Co. v. N. Y. Life, 14 F.Supp. 721, 84 F.2d 1011.

We direct the attention of the court to the fact that the policy does not use the word "intentional" poisoning; nor does it use the word "administered" poison. It does not use these specific terms because the language used is so all-inclusive and comprehensive as that it was not necessary to itemize the methods of taking poison which were excluded from the coverage. The policy states that the double indemnity provision does not apply if death resulted "from the taking of poison or inhaling of gas, whether voluntary or otherwise. " If the poison was administered (in the sense of given) to the decedent intentionally by a person with a felonious intent, and the insured took the same, that is to say, drank the liquid containing poison and took the same into his system,...