Lamar v. Iowa State Traveling Men's Ass'n

• Decision Date: 20 June 1933
• Docket Number: No. 41965.,41965.
• Citation: 216 Iowa 371,249 N.W. 149
• Parties: LAMAR v. IOWA STATE TRAVELING MEN'S ASS'N.
• Court: Iowa Supreme Court

216 Iowa 371

249 N.W. 149

LAMAR

v.IOWA STATE TRAVELING MEN'S ASS'N.

No. 41965.

Supreme Court of Iowa.

June 20, 1933.

Appeal from District Court, Polk County; F. S. Shankland, Judge.

This is a suit at law brought by the plaintiff, Naoma Lamar, against the defendant, the Iowa State Traveling Men's Association, to recover $10,000 on two accident insurance policies. There was a trial to a jury, and, at the close of all the evidence, the district court sustained the defendant's motion for a directed verdict, allowing the plaintiff the sum of $1,000 only and withdrew from the jury the issue on the other $9,000. From the judgment entered on such verdict, the plaintiff appeals.

Affirmed.Maxwell & Ryan, James B. Ryan, Ronald L. Ryan, and Lehan T. Ryan, all of Des Moines, for appellant.

Parsons & Mills and Volney Diltz, all of Des Moines, for appellee.

KINDIG, Chief Justice.

The defendant-appellee, the Iowa State Traveling Men's Association, is an insurance company with its principal place of business at Des Moines.

On May 19, 1931, two accident insurance policies were issued by the appellee to Kirby Lamar. Lamar, at the time, was an attorney engaged in the practice of law at Houston, Mo. Thereafter, on January 4, 1932, while the insurance policies were in full force and effect, the insured was found dead in a garage. When Mrs. Lamar found her husband, the insured, dead, the doors to the garage were almost closed and the engine in his automobile was running. Before his death, the insured had experienced difficulty in starting the engine in his car. Under the entire record, it is evident beyond peradventure of doubt that the assured was killed by the fumes coming from the exhaust pipe of his automobile.

After the insured's death, his wife, Naoma Lamar, the plaintiff-appellant, as the beneficiary in the insurance policies, asked the appellee for the payment of the $10,000 benefits named in the contracts. In response to that request, the insurance company offered to pay $1,000, but denied liability on the remaining $9,000 named in the policies. The basis for denying full liability is predicated by the appellee upon the clause in the insurance policies relieving the appellee from liability when death is caused by gas.

Section 2, article 7, of the policy provides: “Whenever a member in good standing of this association (the appellee company) shall, through external violent and accidental means, receive bodily injuries which shall, independently and exclusively of all other causes result, within ninety days, in the death of the member * * * shall in lieu of weekly indemnity in these by-laws provided, be indemnified in the sum of the amounts hereinafter provided (but in no event shall the total indemnity exceed $5,000.00 * * * ).”

There is contained in each policy a limitation upon the liability of the appellee under the contract. This limitation, known as section 5 (a) of article 7, is as follows: “The association (the appellee company) shall not be liable for death, disability or loss in excess of 1/10 of the amounts in these by-laws provided for indemnity for any injury arising from or effected or aggravated by any of the following causes, conditions or acts, or the results therefrom, to-wit: * * * When the member consciously or unconsciously, voluntarily or involuntarily, accidentally or otherwise, takes, inhales or absorbs any poison, gas, local or general anaesthetic.” (Italics are ours.)

As before indicated, the appellee concedes its liability for one-tenth of the total amount named in the policies, to wit, $1,000, but denies responsibility for the remaining $9,000. No responsibility arises for the $9,000, the appellee declares, because the insured was killed by inhaling gas. On the other hand, the appellant insists that the appellee is liable to her for the entire $10,000 because the insured was not killed by inhaling gas, as contemplated by the insurance contracts. That conclusion is reached by the appellant on the theory that the exhaust from an automobile is not a gas, but a combination and collection of gases.

The appellant's theory is supported by the testimony of a doctor and a chemist. Two witnesses also testified for the appellee, one a doctor and the other a chemist. These expert witnesses do not materially disagree in their testimony. Appellee's witnesses declared that the insured's death was caused by carbon monoxide gas, while the appellant's witnesses were inclined to the view that the insured's death resulted from a collection or combination of gases, including carbon monoxide gas. Therefore, it is concluded by the appellant that her case should be submitted to the jury on the conflict of the expert testimony, under the theory that the exception in the insurance contracts contemplates a single gas, as distinguished from a collection or combination of gases.

[1] We cannot adopt this theory as the correct one in determining the present appeal. As said by the Supreme Court of the United States, in Imperial Fire Insurance Co. v. Coös County, 151 U. S. 452, 14 S. Ct. 379, 381, 38 L. Ed. 231: “* * * The rule is * * * 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.” To the same effect see Birss v. Order of United Commercial Travelers of America, 109 Neb. 226, 190 N. W. 486;Kingsley v. American Central Life Insurance Co., 259 Mich. 53, 242 N. W. 836;Ashley v. Agricultural Life Insurance Company of America, 241 Mich. 441, 217 N. W. 27, 58 A. L. R. 1208;Standard Life & Accident Company of Detroit, Michigan, v. McNulty, 157 F. 224 (C. C. A. Eighth Circuit); Jones v. Hawkeye Commercial Men's Association, 184 Iowa, 1299, 168 N. W. 305, 11 A. L. R. 380.

At least...