Appeal from the District Court of the United States for the Eastern District of Illinois; Fred L. Wham, Judge.
Before EVANS and SPARKS, Circuit Judges, and BRIGGLE, District 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 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 ...