Richter v. Commonwealth Casualty Co.

• Decision Date: 02 March 1928
• Docket Number: 8-1928
• Citation: 93 Pa.Super. 28
• Parties: Richter, Appellant, v. Commonwealth Casualty Co
• Court: Pennsylvania Superior Court

93 Pa.Super. 28

Richter, Appellant, v. Commonwealth Casualty Co

No. 8-1928

Superior Court of Pennsylvania

March 2, 1928

Argued October 26, 1927

Appeal by plaintiff from judgment of C. P. Luzerne County-1925, No 1049. In the case of Hugo Richter v. Commonwealth Casualty Company.

Assumpsit on a policy of accident insurance. Before Coughlin, J.

The facts are stated in the opinion of the Superior Court.

Defendant filed an affidavit of defense raising questions of law.

Judgment for plaintiff in the sum of $ 100.00. Plaintiff appealed.

Error assigned was the judgment of the court.

Affirmed.

George I. Puhak, and with him G. John Bruger and Conrad A. Falvello for appellant.

C William Freed, and with him John H. Bigelow, for appellee.

Before Porter, P. J., Henderson, Trexler, Keller, Linn, Gawthrop and Cunningham, JJ.

OPINION

CUNNINGHAM, J.

The question here involved is the proper construction of a contract of insurance against the effects of bodily injuries caused by accidental means. It arises through the filing, under section 20 of the Practice Act of May 14, 1915, P. L. 483, of an affidavit of defense raising questions of law. The material facts are not in dispute. On April 13, 1925, the appellee, Commonwealth Casualty Company, issued its policy to Otto Richter, in which his father, Hugo Richter, the appellant, was named as the beneficiary. On June 26, 1925, Otto Richter, while engaged in the performance of his duties as a carpenter fell down an elevator shaft and was instantly killed. In the statement of claim, to which was attached a copy of the policy, the beneficiary averred that the amount due him under the policy was $ 5,000, but the court below construed the policy to mean that the amount due him for the loss of the life of the insured, under the circumstances set forth in the statement, was only $ 100 and entered judgment against the defendant for that amount. From the judgment so entered we have this appeal by the beneficiary. The policy is entitled:

" 'PEERLESS TEN DOLLAR' POLICY

Paying limited Indemnity for loss of life, limb, limbs, or sight by accidental means, and for loss of time by accidental means and sickness and indemnity for certain fractures and Identifying service, to the extent herein provided."

The undertaking of the company, material to this case, reads that it

" In consideration of the statements in the application, a copy of which is endorsed hereon and made part hereof, and of ten dollars ($ 10.00) premium.

Hereby insures Otto Richter, subject to all the provisions and limitations herein contained for the term of one year from noon, standard time of the day and at the place this policy is dated, against the effects of bodily injuries caused directly, solely and independently of all other causes by External, Violent and Accidental means ...."

The policy is divided into sections and the question in this case is whether the company is liable in the sum of $ 5,000 under the provisions of Section A, or for only $ 100 under Section F. Section A reads as follows:

" Section A.

accident benefits

Value First Year

Under Sec. A.

For loss of Life

$ 5,000.00

For loss of both hands by complete

severance at or above wrists

3,500.00

.... [ Remainder of table, fixing different amounts for loss of other members and varying with length of time policy is carried, omitted because not material ] resulting within thirty days from date of accident solely from such injuries, which shall have caused continuous total disability from date of accident to date of loss, but only when such injuries are sustained.

While traveling as a passenger in a place regularly provided for passengers, within any common carrier's public passenger conveyance (animals, aerial machines or conveyances excepted). But only when such injuries are sustained by reason of the wrecking of such conveyance."

Section F reads:

" Section F. death by any accident.

The Company will pay for loss of life of the Insured which results within thirty days from date of accident, solely from such injuries caused by an accident in or out of business if not otherwise covered by this policy, and which shall have caused continuous total disability from date of accident to date of loss the sum of one hundred dollars ($ 100.00)."

The learned counsel for appellant contend that, although the insured did not lose his life by reason of injuries sustained while traveling as a passenger in a public passenger conveyance of a common carrier, and through the wrecking of such conveyance, yet the beneficiary is entitled to recover $ 5,000 under Section A because that section is ambiguous and must therefore be construed strictly against the company. They say in their brief that " The ambiguity arises not from the words employed, but from the punctuation and suggestive and misleading manner of printing Section A, as it appears in the policy and from other language used in the policy." They direct attention to the fact that there is a period after the word " sustained" and preceding the clause " while traveling as a passenger," etc. As we understand their argument, it is that the portion of Section A above that period is and was intended to be complete in itself and that the " while traveling" clause forms no part of and does not limit that section. It is obvious that the use of a period after the...