Order of United Commercial Travelers v. Edwards

• Decision Date: 27 June 1931
• Docket Number: No. 389.,389.
• Parties: ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA, Inc., v. EDWARDS.
• Court: U.S. Court of Appeals — Tenth Circuit

51 F.2d 187 (1931)

ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA, Inc., v. EDWARDS.

No. 389.

Circuit Court of Appeals, Tenth Circuit.

June 27, 1931.

P. C. Simons, of Enid, Okl., and E. W. Dillon, of Columbus, Ohio (Simons, McKnight, Simons & Mitchell, of Enid, Okl., on the brief), for appellant.

C. F. Dyer, of Enid, Okl., and Stephen C. Treadwell, of Oklahoma City, Okl. (Dyer, Smith & Crowley, of Enid, Okl., on the brief), for appellee.

Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.

McDERMOTT, Circuit Judge.

The appellee recovered on an accident insurance policy. The appellant assigns as error that the court should have directed a verdict for appellant, and that there was error in the charge to the jury. The controversy narrows to one proposition, for if the theory upon which the trial court declined to direct a verdict is sound, then the charge to the jury is sound. We take up the question of whether the court should have directed a verdict for the appellant.

There is little dispute as to the facts. The testimony of the plaintiff's witnesses was that on June 9, 1927, the insured accidentally fell out of an automobile and struck his side or lower abdomen against the running board; the blow left a red and inflamed mark, which disappeared by the third day. The skin was not broken. A doctor was called the third day after the accident, and discovered a mass in the region of the caecum and the appendix; that night the insured was operated. The appendix, the caecum and the bowel were gangrenous and highly infected. Four days later he died of a bloodstream infection, a general septicemia.

The contract sued on certifies that:

The insured "is entitled to all the rights and benefits which may be provided for such `Class A' Insured Members in and by the Constitution of said Order in force and effect at the time any accident occurs subsequent to said time and date. The benefit under this certificate for death due to accidental means alone and independent of all other causes shall be six thousand three hundred dollars ($6,300.00).

"This Certificate, the Constitution, By-Laws and Articles of Incorporation of said Order, together with the application for insurance signed by said Insured Member, shall constitute the contract between said Order and said Insured Member and shall govern the payment of benefits, and any changes, additions or amendments to said Constitution, By-Laws or Articles of Incorporation, hereafter duly made, shall bind said Order and said Insured Member and his beneficiary or beneficiaries, and shall govern and control the contract in all respects."

The constitution, referred to in the certificate, is a booklet of 91 pages; article IV thereof, consisting of 17 pages, deals with insurance; section 7 of article IV consists of two pages of exemptions from liability in case of accidental injury or death. The clause directly in question reads, in part:

"Nor shall the Order be liable to any person for any benefits for any death, disability or loss of time by reason of any of the following conditions, whether caused by accidental means or not, to-wit: Appendicitis, * * * poisoning, * * * 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). * * *"

Whether the insured died as a result of appendicitis is a debatable question. There is not the slightest doubt, however, that his death was caused by an infection; the attending physician and surgeon, testifying for plaintiff, agree upon that. There is no contention that the infection was introduced into his system through an open wound visible to the unaided eye. The clause provides that there shall be no liability for any death from infection "whether caused by accidental means or not." It 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." Imperial Fire Insurance Co. v. Coos County, 151 U. S. 452, 462, 14 S. Ct. 379, 38 L. Ed. 231. See, also, U. S. Fidelity & G. Co. v. Guenther, 281 U. S. 34, 50 S. Ct. 165, 74 L. Ed. 683; East and West Insurance Co. v. Fidel (C. C. A. 10) 49 F. (2d) 35; Chase v. Business Men's Assurance Co. (C. C. A. 10) 51 F.(2d) 34, and cases therein cited.

There being no ambiguity in the language used, there is no room for construction; the undisputed facts bringing the case squarely within the four corners of the exemption, the appellant was entitled to an instructed verdict.

The appellee suggests several answers to the apparently impregnable logic of appellant's position. The first answer, and the one followed by the trial court in its charge to the jury, is that there may be a recovery on an accident insurance policy where the immediate cause of death is disease, provided that an accident is the proximate cause of the disease; or, otherwise stated, if an accident causes a death, there may be a recovery notwithstanding that a disease intervenes and is a link in the chain of causation. This rule is amply sustained by authority. United States Mutual Accident Ass'n v. Barry, 131 U. S. 100, 9 S. Ct. 755, 33 L. Ed. 60; National Masonic Acc. Ass'n v. Shryock (C. C. A. 8) 73 F. 774; Western Commercial Travelers' Ass'n v. Smith (C. C. A. 8) 85 F. 401, 40 L. R. A. 653; New Amsterdam Casualty Co. v. Shields (C. C. A. 6) 155 F. 54; Illinois Commercial Men's Ass'n v. Parks (C. C. A. 7) 179 F. 794; Aetna Life Ins. Co. v. Wicker (C. C. A. 2) 240 F. 398; Freeman v. Mercantile Mutual Acc. Ass'n, 156 Mass. 351, 30 N. E. 1013, 17 L. R. A. 753; Central Acc. Ins. Co. v. Rembe, 220 Ill. 151, 77 N. E. 123 5 L. R. A. (N. S.) 933, 110 Am. St. Rep. 235, 5 Ann. Cas. 155; Travelers' Insurance Co. v. Murray, 16 Colo. 296, 26 P. 774, 25 Am....