King v. New York Life Ins. Co.

• Decision Date: 15 August 1934
• Docket Number: No. 9923.,9923.
• Citation: 72 F.2d 620
• Parties: KING v. NEW YORK LIFE INS. CO. OF NEW YORK.
• Court: U.S. Court of Appeals — Eighth Circuit

72 F.2d 620 (1934)

KING v. NEW YORK LIFE INS. CO. OF NEW YORK.

No. 9923.

Circuit Court of Appeals, Eighth Circuit.

August 15, 1934.

S. L. Winters, Henry J. Beal, and James W. Murphy, all of Omaha, Neb., for appellant.

Norris Brown, David A. Fitch, and Ralph M. West, all of Omaha, Neb., for appellee.

Before SANBORN and BOOTH, Circuit Judges, and BELL, District Judge.

BOOTH, Circuit Judge.

This is an appeal from a judgment entered after verdict directed for the defendant, New York Life Insurance Company, at the close of plaintiff's case.

The action was originally commenced in the state district court of Douglas county, Neb., but was duly removed to the United States District Court for the District of Nebraska, and was tried in the latter Court.

The main facts are not in dispute. February 13, 1926, the Insurance Company issued its policy insuring the life of John J. King, husband of appellant, in the sum of $25,000, with a double indemnity clause on certain conditions. Appellant was the beneficiary in the policy.

The double indemnity clause in the policy sought to be recovered on was as follows (the heading being "Double Indemnity"):

"The Double Indemnity provided on the first page hereof shall be payable upon receipt of due proof that the death of the Insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means and occurred within ninety days after such injury.

"Double Indemnity shall not be payable if the insured's death resulted from self-destruction, whether sane or insane; from the taking of poison or inhaling of gas, whether voluntary or otherwise; from committing an assault or felony; from war or any act incident thereto; from engaging in riot or insurrection; from participation as a passenger or otherwise in aviation or aeronautics; or, directly or indirectly, from infirmity of mind or body, from illness or disease, or from any bacterial infection other than bacterial infection occurring in consequence of accidental and external bodily injury."

The policy sued upon also contained the following:

"New York Life Insurance Company * * * agrees to pay to Mary K. King, Wife of the Insured * * * Twenty-five Thousand Dollars (the face of this policy), upon receipt of due proof of the death of John J. King, the Insured, or Fifty Thousand Dollars (double the face of this policy), if such death resulted from accident as defined under `Double Indemnity' on the second page hereof and subject to the provisions therein set forth."

The insured died May 12, 1932. The Insurance Company paid the principal sum of $25,000, but refused payment of the additional $25,000 under the double indemnity clause. It was agreed that the payment made should be without prejudice to the right of the beneficiary to sue for the additional amount under the double indemnity clause. The present suit was thereafter commenced.

The facts and circumstances relating to the cause of death of the insured, as disclosed by the record, are substantially as follows: Jerry Keogh, who lived with Mr. and Mrs. King, testified that he found King dead in the garage between 7 and 8 a. m. on May 12, 1932. King was found between two cars in his garage, one a Ford on the east side facing north, the other a Chrysler facing north. There were two windows to the west in the garage. The lower part of the windows was broken out, and the door of the garage was ajar just wide enough to get in. King was in about the center of the garage with his head near the right rear wheel of the Chrysler, and his feet just at the running board opposite the west door of the Ford, which door was open about two-thirds against a post which was in the center of the garage. He was lying on the cement floor of the garage on his back, his head on the cement floor. His head was toward the west, and his feet toward the east. His head was about ten feet away from the open door of the garage.

Catherine Donovan, a cousin visiting at King's testified that she had used the Ford car all the day before, and that night up until about 12:30. She had difficulty the day before with shutting off the motor; when she stopped to get some oil at a gas station, she shut off the switch and it would bounce back again. The evening before, another key had been put in the ignition, and in trying to turn it, the key was broken off. When she came back to King's home that evening she put this car in the garage, and shut the door of the garage and fastened it, came into the house, and found King and his wife waiting for her. She showed them the broken key, and they asked her if she shut off the car, and she said she didn't know whether she did or not, but she guessed she did. King said something about how could you do it with the broken key, and then he said he would go out and see about it after awhile. All three talked there until about 2:30, and then the witness went to bed upstairs, and didn't see King after that. On cross-examination she testified that she didn't know but what she might have left the switch on and the engine running that night.

Dr. McCleneghan, coroner's physician, testified that he performed an autopsy on King on May 12, 1932, the date of his death, with Dr. William Melcher present. He noticed some slight abrasions below the knees; and his examination showed King's death was caused by carbon monoxide gas from the exhaust of a car. The blood in carbon monoxide poisoning is of a cherry red color, the muscles are also of a cherry red color, and the different organs, the liver, spleen, and kidneys, also have this peculiar red color; and these symptoms were all present in King's body. The abrasions were below the surface of the skin below each knee, and they were of recent origin. He found no objective signs of injury to the head. He said the carbon monoxide gas got into his body by inhalation, by breathing the gas.

Jack King, seventeen year old son of King, testified that he drove the Ford car often and had difficulty with the switch in the same manner as Mrs. Donovan testified.

Other witnesses testified along the same line as to the condition of the Ford car.

In view of the foregoing testimony, it is conceded that the insured died as a result of carbon monoxide gas poisoning resulting from accidental means. There is no question of suicide involved.

The sole question at issue is whether the death was within the coverage of the policy.

The answer to this question depends upon the construction of the clause of the policy reading: "Double Indemnity shall not be payable if the Insured's death resulted * * * from the taking of poison or inhaling of gas, whether voluntary or otherwise."

This clause purports to contain an exception to the double liability and is one of a series of nine or ten exceptions mentioned in the policy.

The contention of appellant is that the insured "did not inhale said gas within the meaning of said exception, nor was said gas taken voluntarily or in any other intentional manner; but that the evidence showed that the deceased died as the result of breathing carbon monoxide gas unintentionally, and the jury could infer from the facts and circumstances, unconsciously"; and that, therefore, the court erred in holding that the death of insured came within the exception mentioned in the policy.

The main principles governing the construction of contracts of insurance are the same as those governing other contracts.

In Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452, page 463, 14 S. Ct. 379, 381, 38 L. Ed. 231, the Supreme Court laid down the following rules: "But the rule is equally well settled 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." And also (page 462 of 151 U. S., 14 S. Ct. 379, 381): "* * * the insurer undertakes to guaranty 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. The terms of the policy constitute the measure of the insurer's liability, and, in order to recover, the assured must show himself within those terms. * * * 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 contract 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."

These rules have been adopted unequivocally by this court. In the case of Hawkeye Commercial Men's Ass'n v. Christy (C. C. A.) 294 F. 208, the court, after quoting approvingly the rules laid down in the Imperial Fire Insurance Company Case, supra, and reviewing many cases, some of which are relied upon by appellant in the case at bar, speaking by Judge Walter H. Sanborn, and interpreting the contract of insurance there involved, said (page 212 of 294 F.):

"Stripped of irrelevant parts, the portion of the contract which is decisive of the question at issue here reads in this way:

"`* * * Nor shall the association be liable for indemnity for any death resulting wholly or in part from * * * poisonous substances, gases, or anything accidentally, or otherwise, taken or inhaled. * * *'

"On the first reading of this stipulation, it seemed simple, its terms seemed unambiguous, and their plain, ordinary, and popular meaning clear. No suggestion arose in our minds that this clause...