Westmoreland v. Preferred Acc. Ins. Co.

• Decision Date: 05 June 1896
• Parties: WESTMORELAND v. PREFERRED ACC. INS. CO.
• Court: U.S. District Court — Northern District of Georgia

75 F. 244

WESTMORELAND v. PREFERRED ACC. INS. CO.

United States Circuit Court, N.D. Georgia.

June 5, 1896

A policy was issued to one W., insuring him against death from bodily injury caused solely by external, violent, and accidental means, but stipulating that there should be no liability for injury resulting from anything "accidentally or otherwise taken, * * * absorbed, or inhaled, * * * or resulting, either directly or indirectly wholly or in part, from * * * medical or surgical treatment." In an action on the policy after W.'s death, it was alleged in the declaration that in order to relieve him from the pain of a surgical operation a physician administered chloroform to W. in a proper way, and that before he came under its influence, from it and some unknown cause combined, he suffocated and died; that death would not have resulted from the chloroform alone, but did result from the operation of the chloroform, acting in an unusual way and the unknown cause. Held, that the declaration stated no cause of action.

Goodwin & Westmoreland, for plaintiff.

Payne &amp Tye, for defendant.

NEWMAN District Judge.

The plaintiff brings her suit on an accident insurance policy issued to her husband by the defendant company. The insured died on the 12th day of July, 1895. The case is now heard on a demurrer which is interposed on the ground that the declaration sets forth no cause of action. The case, as made by the declaration and the amendments thereto, is this: A policy of insurance, issued to the insured in his lifetime, and which was in force at the time of death, granted him insurance, in the sum of $5,000, in consideration of certain annual premiums, against death from bodily injury caused solely by external, violent, and accidental means. By the terms of the policy, it was stipulated that there should be no liability on the part of the company in case of death from certain enumerated causes-- among them, 'injury, fatal or nonfatal, resulting from * * * anything accidentally or otherwise taken, administered, absorbed, or inhaled'; also, 'death * * * resulting, either directly or indirectly, wholly or in part, from * * * medical or surgical treatment.' The death of the insured occurred in this way: He was suffering from protruding piles, and it was necessary to replace the same. To relieve him from the pain this would cause, a competent physician proceeded, in a proper way, to administer chloroform in a proper quantity. Before the insured was under the influence of the chloroform, but from it and an unknown cause combined, he suffocated, became black in the face, and gasped and died. It is alleged that death would not have resulted from the action of the chloroform acting in an unusual and unexpected way-- and an unknown cause that death resulted.

In the first place, waiving for the moment the exceptions in the policy, was the death the result of 'bodily injury caused solely by external, violent, and accidental means'? While it is true that the policy will be given a construction favorable to the insured, so far as it consistent with the ordinary and usual meaning of the terms employed, still it is incumbent on the beneficiary bringing suit on the policy to show that the cause of death was such as would bring it within the language of the policy, so construed. Insurance Co. V. McConkey, 127 U.S. 661, 8 Sup.Ct. 1360. Conceding that the external violence need not necessarily be force from without such as a fall or a blow, but would...