88 F. 38 | U.S. Circuit Court for the District of Western Tennessee | 1898
(after staling the facts as above). The notion that Miller had contracted for an insurance as broad as the original policy, and was not, under the circumstances, bound by the more restricted limitations of the substituted policy, is wholly untenable. There is nothing whatever in the circular letter found in the evidence offering to bind the substituted company to the old policy of the defunct company. The first company was a mutual company, the second was a stock company; and this, of itself, would suggest the necessity of some change of the form of contract, and the necessity for a new policy. There was not a guaranty or an assumption of an old contract, nor
Much stress has been laid upon what I will call the “fine print” argument, so often resorted to in cases like this. There are occasions, undoubtedly, when there is force in this argument, and the courts have sometimes sustained it when the circumstances were such that special notice of the particular condition would be required to charge the policy holder with a knowledge of the fact of its existence. A pertinent illustration is found in the case cited by counsel of Bassell v. Insurance Co., 2 Hughes, 531, Fed. Cas. No. 1,094. There, in the negotiations with the agent of the insurance company, the policy holder had told him that he used kerosene oil for the lighting of his store, but did not keep it in stock. Afterwards a policy was sent to him, in which there was a condition printed that kerosene oil should not be used for lighting the premises, except by special permission; and it was held that under the circumstances the policy holder was not bound by the condition without having his attention specially called to it, for the obvious reason that he had negotiated for a contract which permitted him to use the kerosene oil, as he might reasonably suppose; and the appearance of the condition in fine print on the back of the policy with innumerable other conditions was held not to charge him with notice, or bind him to a change of the contract which he had made. Other cases might be cited to the same effect, but they do not at all proceed upon the theory of eliminating the conditions that are printed in fine print, but depend upon the particular circumstances of the making of the contract which show that the policy holder had never agreed to it. It is unnecessary to consider these cases more particularly, for the reason that the present case is destitute of a single circumstance to invoke that principle. It is well enough to remark, in the first place, that there is no fine print on this policy. The condition involved is conspicuously printed in type as large as that on the face of the policy, and. in such manner as to attract the attention of any one who should give the subject the least attention. The argument by the plaintiff assumes that Miller, being aware of the fact that he had a broad policy covering his life if he should be murdered, naturally supposed that the new policy was as
The great and substantial struggle between the parties in this case depends upon the proper construction of the language of the condition containing the exception relied upon to eliminate any liability in a case where the policy holder was murdered. Deeming'it possible that the rights of the parties might depend upon the construction of the phraseology of the old policy insuring in its broad terms against “bodily injuries effected through external, violent, and accidental means,” without any limitation applicable to the case of one murdered, or that it was possible that the exception in the new policy might be disregarded upon the “fine print” theory, there was a very learned and able argument between counsel upon the authorities cm the question whether or not the words of the old policy within themselves would cover a case of murder; whether death by murder, in the sense of the law, is a death by “accidental means,” which are the words of both policies; hut we are relieved from a consideration of this argument, or of the cases on either side, by the holding that the rights of the parties do not depend upon the old policy, and that the disputed condition of the new policy was accepted by Miller, and binding on him. It then becomes a question of the proper construction
Again, an ingenious argument has been made to the effect that, notwithstanding the condition, the case of murder is not taken from ■the broad language of the insurance clause of the policy, and, conceding that death by murder is an accidental means by which the life was destroyed, that there is then no exception in the condition against it. The argument for the plaintiff proceeds upon the theory that the disputed words, “or intentional injuries inflicted by any person,” can properly be held to apply only to “injuries that do not include death,” to use the language of learned counsel for the plaintiff. Injury, commonly so called, counsel contends, includes any and all hurt and harm short of death, and this policy so confines the meaning of the word that only bodily injuries short of death, sustained through external, violent, or accidental means, are comprehended within the disputed phrase above quoted. It divides, or rather subdivides, injuries short of death into three classes or divisions, for each of which different indemnities are to be paid: (a) Losses of time, not including loss of one or both hands, feet, or eyes, for each of which a different indemnity is paid; (b) severance or dismemberment, — the loss of one or both hands, feet, or eyes, for each of which a different indemnity is paid; this class of injuries being called “severance or dismemberment”; (c) total disability for two years arising from some injury other than the loss of one or both hands, feet, or eyes, for which a different indemnity is paid. This classification of the argument is taken from ¡he terms of the policy, and is substantially correct; and now the argument proceeds to urge that the language or phraseology of the conditions containing the exceptions must be construed in reference to that classification. Then we come to (d) death resulting from external, violent, and accidental means; this being an entirely independent class of “losses,” not at all related to the others, for which also a different indemnity is paid, namely, a life insurance of ten thousand dollars, — the final contention of the argument being that this death loss is not included in the exception of “intentional injuries inflicted by any person,” the phrase used in the exception. In other words, the argument is that the exception of “intentional injuries inflicted by any person” must be, by proper construction of the sentence, confined to those injuries which would otherwise be covered by the policy falling short of death.
The argument here is very ingenious and quite persuasive, but I think it is illusory and unsound, and is broken down by the plain, everyday, grammatical arrangement of the sentence. It does not depend upon adjudicated precedents, for no case has been cited on either side deciding the point. The full authority of the cases cited on either side may be conceded, and yet they do not throw even a useful sidelight upon this question, and I shall therefore confine consideration of the subject to the construction of the sentence itself, conceding to the fullest extent the claim that all doubt must be resolved against the company. Undoubtedly, this question would never have been made if the architect of the sentence had anticipated the point we have under consideration, and had proceeded to recon
Let ns analyze the sentence in a simple way, as follows: (1) The insurance under this contract shall not cover (a) disappearances, or (b) injuries, whether fatal or disabling, of which there is no visible mark, etc. (2) Nor cover (a) injuries, (b) dismemberment, (c) dis