315 Mass. 17 | Mass. | 1943
The plaintiff, the beneficiary named in two policies of insurance issued by the defendant upon the fife of her husband, seeks to recover the amount named as double indemnity in each policy. The policies except as to amounts were identical in form. Each provided for the payment of a certain amount upon receipt of due proof of the death of the insured and twice that amount “if such death resulted . . . from accidental means as defined in and subject to the provisions set forth under ‘Double Indemnity.”’ The next page of the policy contained the following provision: “The Double Indemnity Benefit specified on the first page hereof shall be payable upon receipt of due proof, on forms prescribed by the Company, that the death of the Insured re-
Each count of the declaration was based upon one of these policies and set forth the abstracts from the policies which have just been quoted, but neither count alleged that the death of the insured was not due to any of the specific causes mentioned in the proviso clause to which we have already referred. At a hearing upon a demurrer, the judge ruled in effect that the declaration was defective on account of the failure to allege that the death of the insured did not result from any of the causes included in the proviso clause and ordered the demurrer sustained. He then reported his ruling to this court.
The only question presented is whether the declaration sets forth a good cause of action upon the double indemnity provisions of these policies without negativing suicide and the other causes included in the proviso claúse as the cause of the death of the insured.
The defendant agreed in the insuring clause on the first page of each policy to pay twice the face of the policy if death resulted from accidental means as defined in and subject to the provisions contained in that part of the policy which dealt with the double indemnity. Nothing more appeared upon the first page of the policy with reference to double indemnity. This provision did not impose any general or absolute obligation to pay double indemnity in every instance where the death of the insured resulted either immediately or remotely from accident. The scope of the company’s liability to pay for an accidental death was not fixed by this provision. It did not agree to pay double indemnity for a death arising from any kind of an accident. It agreed to pay only when death was caused by accidental means as defined in the double indemnity clause. The provision appearing upon the first page of the policy designated the amount the
The instant case is distinguishable from Murray v. Continental Ins. Co. 313 Mass. 557, 560, and cases cited therein, upon which the plaintiff relies. In the Murray case the risk assumed by the company was stated in the general insuring clause to be “against all direct loss and damage by ‘sprinkler leakage/ except as herein provided.” The company there undertook in general terms to indemnify the insured against all loss and damage due to leakage from the sprinkler system, and the burden of proving that the damage arose from a cause that was excepted from this general coverage by a subsequent clause in the policy was held to be upon the company. Here, as already pointed out, the limitations of the risk were settled by a single sentence which separated the causes of death that were within from those that were without the policy.
Order sustaining demurrer affirmed.