New York Life Ins. Co. v. Kassly

• Decision Date: 29 January 1937
• Docket Number: No. 5980.,5980.
• Citation: 87 F.2d 236
• Parties: NEW YORK LIFE INS. CO. v. KASSLY.
• Court: U.S. Court of Appeals — Seventh Circuit

87 F.2d 236 (1937)

NEW YORK LIFE INS. CO. v. KASSLY.^*

No. 5980.

Circuit Court of Appeals, Seventh Circuit.

January 5, 1937.

Rehearing Denied January 29, 1937.

Rudolph J. Kramer, Bruce A. Campbell, Roland H. Wiechert, R. E. Costello, and Norman J. Gundlach, all of East St. Louis, Ill., for appellant.

Louis Beasley and Edward C. Zulley, both of East St. Louis, Ill., for appellee.

Before EVANS and SPARKS, Circuit Judges, and BRIGGLE, District Judge.

EVANS, Circuit Judge.

Appellant seeks a reversal of judgment based upon a double indemnity insurance policy wherein the widow of the insured was beneficiary. Recovery was predicated upon an alleged fact showing of death from septicaemia occasioned by an accident. The contest is limited to the double indemnity phase of the liability. Our decision must turn upon the language of the contract which measures appellant's liability.

The Facts. John Kassly obtained a life insurance policy from appellant for $5,000 with a double indemnity accident provision therein on August 23, 1934. He died September 14, 1934.

On September 7, the insured pulled a hair from his nose with the result that a most profuse bleeding occurred. Shortly thereafter the nose became swollen and discolored and remained so for a day or two. On the succeeding Sunday his nose swelled, his face became brown, and his eyes watered.

On September 12, the insured was found in a semi-comatose condition in a hotel, and he was removed to a hospital where he died early September 14. The doctors differed in their observations and conclusions. Each emphasized certain symptoms from which he drew conclusions favorable to the party for whom he testified. An extended and detailed statement of such conflicting evidence will not be undertaken because we are satisfied that the cause of the septicaemia was for the jury to determine. Its verdict is conclusive on the court. It found for the appellee.

The sharply controverted question, therefore, arises out of the accident clause — the double indemnity clause of the policy. This provision not only created the liability of the insurer, but it also must be construed in order to determine its application. It determines the question which is before us. Both parties must find support for their contentions in it.

The provision reads:

"The Double Indemnity specified 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 and prior to the anniversary of the Policy on which the Insured's age at nearest birthday is 65; provided, however, that such Double Indemnity shall not be payable if the Insured's death resulted, directly or indirectly, from (a) self-destruction, whether sane or insane; (b) the taking of poison or inhaling gas, whether voluntary or otherwise; (c) committing an assault or felony; (d) war or any act incident thereto; (e) engaging in riot or insurrection; (f) operating or riding in any kind of aircraft, whether as a passenger or otherwise, other than as a fare-paying passenger in a licensed passenger aircraft provided by an incorporated passenger carrier and operated by a licensed pilot on a regular passenger route between definitely established airports; (g) infirmity of mind or body; (h) illness or disease; or (i) any bacterial infection other than that occurring in consequence of accidental and external bodily injury."

Briefly stated, it is appellant's position that, in order to recover under the double indemnity provision above quoted, the death must have occurred through accidental means. Inasmuch as the extraction of the hair from the nose was not accidental, but was the deliberate act of the insured, double liability under this policy did not arise.

Appellee, on the other hand, argues for one of two alternative constructions of this clause. She insists (a) that the evidence showed that the death resulted from injury effected solely through external, violent, and accidental means and (b) that subdivision (i), above quoted, specifically covers the instant case, and she is not compelled to contest appellant's asserted distinction between a death resulting from accidental means and one resulting from accidental bodily injury.

A careful reading of the coverage clause of the policy necessitates the conclusion that appellant there gave to the words "accidental means" a construction from which it cannot now escape. At least three persuasive reasons necessitate this conclusion.

First, the exceptions set forth in the "provided however" clause negative the narrow definition of the term "accidental means" for which appellant argues. Subdivision (i) of the "provided however" clause, in particular, either necessitates the attribution of the meaning of accidental bodily injury to "accidental means" or it constitutes a separate coverage, limited to death resulting from bacterial infection. Generalia specialibus non derogant.

Second, the use of the words "accidental means," as used in the first clause, and the words "accidental injury" in subdivision (i) of the "provided however" clause, if they are not consonantal, creates an ambiguity which must be resolved against the insurer who chose the language.

Third, the fair and reasonable meaning of the two expressions includes death resulting from injury which grew out of the performance of the intended act of the insured. In other words, the language of this policy (the entire sentence must be construed together) has a tolerably plain and pretty well understood meaning, both with the writers of, and the subscribers to, insurance. The meaning we should adopt is the one which the insurer had when it sold the policy and which the insured entertained when he paid his premiums. A refinement of meaning — a technical meaning — should not be ascribed to it inasmuch as in the same paragraph the insurer used language which contradicts or modifies such a restricted or technical meaning.

First, so as to focus attention on the point at issue, it may be admitted that the words "accidental means" are words which were intended to limit liability in cases of accidental death. In other words, it excluded deaths which occurred from certain acts which were deliberately and intentionally performed by the insured. In other words, it eliminated suicide. Cases may be found in abundance which support such a conclusion. It would serve no useful purpose to examine the contracts in each case which so held. Likewise, cases purporting to hold the contrary are cited. In view of the admission, however, analysis and discussion of these cases become irrelevant.

In the light of this admission the question is, Why should the policy before us not be so construed?

The answer must be found in the "provided however" clause. If the insurer intended to limit recovery to accidental means cases and to escape liability where the intended act resulted in accidental injury and eventually in death, why did it immediately provide that such double liability should not extend to death from "self-destruction, whether sane or insane"? Surely there was no liability if accidental means solely determined liability, for one, who sane, deliberately took his life. Why, then, make a separate coverage in the nature of an exception?

How about the second exception in the "provided however" clause? "The voluntary taking of poison or inhaling of gas?"

But the refutation of the meaning for which appellant contends becomes complete when subdivision (i) is examined. There we have not only a conflicting construction of the "accidental means" clause, but an affirmative recognition of a right to recover when death occurs in consequence of accidental and external bodily injury. If there be a legal distinction (not understood by the layman and which might have defeated a sale of the policy if asserted when the insurance was sought) between accidental means and accidental results, it does not exist in the case before us, in view of the applicable clause (i) which covers death from bacterial infection which results from an accidental injury.

Second. It is hardly necessary to discuss the second ground. If it be argued that the first clause limits recovery to cases where death was occasioned by accidental means, then subdivision (i) contradicts such conclusion and creates confusion and ambiguity. In such a situation, the construction of the first clause should be against the insurer. Aschenbrenner v. U. S. F. & G. Co., 292 U.S. 80, 54 S.Ct. 590, 78 L.Ed. 1137; Deer & Son v....