delivered the opinion of the court.
In this case is in issue the coverage of a health and accident insurance policy.
This policy in part reads:
“TEN YEAR ANNUAL INCREASING POLICY
“THIS POLICY PROVIDES BENEFITS FOR LOSS OF LIFE, LIMB, SIGHT OR TIME BY ACCIDENTAL MEANS, OR LOSS OF TIME BY SICKNESS AS HEREIN PROVIDED
“MUTUAL BENEFIT HEALTH AND ACCIDENT ASSOCIATION
OMAHA
(Herein called Association)
DOES HEREBY INSURE
Monthly Benefits .. .$ 50.00 Death Benefit.......$1,250
Maximum Monthly Maximum Death
Benefits .........$100.00 Benefit
$2,500
“Insuring Clause Jessie Ryder (Herein called the Insured) of City of Portsmouth, State of Virginia, against loss of life, limb, sight or time, resulting directly and independently of all other causes, from bodily injuries sustained during any term of this policy, through purely Accidental Means (Suicide, sane or insane, is not covered), and against loss of time beginning while this Policy is in force and resulting from disease contracted during any term of this Policy, respectively, subject, however, to all the provisions and limitations hereinafter contained.
“ACCIDENT INDEMNITIES SPECIFIC LOSSES
“PART A.
“If the Insured shall sustain bodily injuries as described in the Insuring Clause, which injuries shall, independently and exclusively of disease and all other causes, continuously and wholly disable the Insured from the date of the accident and result in any of the following specific losses within thirteen weeks, the Association will pay:
For Loss of Life..........................$1,250.00
For Loss of Both Eyes.....................$1,250.00
For Loss of Both Hands...................$1,250.00
For Loss of Both Feet.....................$1,250.00
For Loss of One Hand and One Foot........$1,250.00
For Loss of Either Hand................... 350.00
For Loss of Either Foot.................... 350.00
For Loss of Either Eye.................... 250.00”
In “Part B” provision is made for “DOUBLE SPECIFIC LOSSES” and in it this appears: “Only one of the amounts named in Parts A and B will be paid for injuries resulting from one accident, and shall be in lieu of all other indemnity.”
Has plaintiff brought herself within that provision of
It is scarcely necessary that we restate these elementary rules, although they should be continually remembered. Where there is doubt as to construction of policies, the insured is favored, but like other contracts they are to be construed as written.
One who assaults another, or voluntarily enters into an affray and is hurt, has not suffered an accident. But if assaulted he may defend himself. Any injury which he sustains in so doing is accidental. Travelers’ Ins. Co. v. Dupree,
Ryder did not die of a cut finger, but from the poison of germs which entered his system through that open gateway.
“Blood poisoning resulting from an accidental wound or abrasion is within' the protection of an accident policy; but it is otherwise where the wound or abrasion is not an accidental injury within the meaning of the policy.” 1 C. J., p. 430.
In Order of United Commercial Travelers v. Edwards (C. C. A.), 51 F. (2d) 187, 190, it was said: “* * * if death is caused by an infection which is introduced through an open and visible wound, there is liability,” although that case was reversed for reasons which do not touch this principle.
In Business Men’s Acc. Ass’n v. Schiefelbusch (C. C. A.),
French v. Fidelity & Casualty Co.,
A like conclusion on almost the same state of facts was reached in Cary v. Preferred Accident Ins. Co.,
This wound accidentally suffered and afterwards infected and from which death followed brings the plaintiff within the provision of “Part A” of her policy. Infec
Payment for this specific loss in the language of the policy “shall be in lieu of all other indemnity,” which would appear to end this case, but it is contended that this is not so because of these subsequent policy provisions :
“ILLNESS INDEMNITIES CONFINING ILLNESS BENEFITS FOR LIFE
“PART K.
“The Association will pay, for one day or more, at the rate of Fifty ($50.00) Dollars per month for disability resulting from disease, the cause of which originates more than thirty days after the effective date of this policy, and which confines the Insured continuously within doors and requires regular visits therein by legally qualified physician; provided said disease necessitates total disability and total loss of time.
“NON-CONFINING ILLNESS TWENTY-FIVE DOLLARS PER MONTH
“PART L.
“The Association will pay, for one day or more, at the rate of Twenty-five ($25.00) Dollars per month, but not exceeding three months, for disability resulting from disease, the cause of which originates more than thirty days after the effective date of this policy, and which does not confine the Insured continuously within doors but requires regular medical attention; provided said disease necessitates total disability and total loss of time.
“SPECIAL COVERAGE
“PART M.
“Any accidental injury, fatal or otherwise, resulting in hernia, boils, carbuncles, felons, abscesses, ulcers, infection, ptomaine poisoning, cancer, diabetes, fits, peritonitis, apoplexy, sunstroke, freezing, hydrophobia, sprained , or
“Part A” and “Part R” deal and apparently deal finally with death benefits, after which follow many provisions relating to accident disability and to illness indemnity. Sandwiched among these is “SPECIAL COVERAGE, PART M.”
It is said that there can be no doubt what is meant by “any accidental injury, fatal or otherwise, resulting in * * * infectionj” and that ini such a case payment is to be made under “Part E or L,” which is to be in full of every promise.
Defendant in error contends that the right of recovery given to her by “M” is not exclusive of rights theretofore conferred but extends the coverage of “E” and “L” to meet possible conditions not already provided for.
We have seen that incidents may be accidents within the purview of the policy, although there are intervening links in the chain of causation which lead to final results. On the other hand, if an accident co-operates with some pre-existing disease or bodily infirmity and produces results which but for them it would not have produced, there is no liability. On this subject the leading case probably is National Masonic Acc. Ass’n v. Shryock (C. C. A.),
“The burden of proof was upon the defendant in error to establish the facts that William B. Shryock sustained an accident, and that that accident was the sole cause of his death, independently of all other causes. If Shryock suffered such an accident, and his death was caused by that alone, the association agreed, by this certificate, to pay the promised indemnity. But if he was affected with a disease or bodily infirmity which caused his death, the association was not liable under this certificate, whether he also suffered an accident or not. If he sustained an accident, but at the time it occurred he was suffering from a pre-existing disease or bodily infirmity, and if the ac
Cited with approval in Continental Cas. Co. v. Peltier,
This principle was applied in White v. Standard Life & Acc. Ins. Co.,
It was again applied in Kerns v. Aetna Life Ins. Co. (C. C. A.),
In Sharpe v. Commercial Travelers’ Mutual Acc. Ass’n,
This principle was recognized in Freeman v. Mercantile Mutual Acc. Ass’n,
From these cases it follows that an illness may follow an accident on which there can be no recovery for accidental disabilities, although there might be a recovery in the nature of sick benefits.
Of course insurers in plain language may limit or extend coverage at their election. United Security Life Ins. & Trust Co. v. Massey,
They may promise to pay whether the situation following an accident be aggravated by conditions antecedent or subsequent. Such an unconditional promise would not curtail but would extend the limits of liability. If there could be no recovery because of antecedent conditions then in such a case “Part M” as a limitation of liability would have been unnecessary.
The distinction between an antecedent illness made acute by an accident and subsequent diseases, which are but links in the chain of causation, is done away with.
Until “Part M” was written the character of illness and its origin was a jury question. It has also removed that hurdle from the path of the insured.
The contention of defendant leads us to results unlooked for and curious.
If a leg were amputated, specific payment would have to be made but not if some cancerous condition was found. The presence of a felon might defeat specific recovery for the loss of both legs. One might lose his arm and sprain his back in the same accident. Such provisions in the face of a definite promise to pay a named sumí “in lieu of all other indemnity,” if not unintelligible, are at least staggering.
One can not in the same policy for one accident promise to pay a certain sum and then reduce it by5 another method
Space forbids the discussion of those many cases cited on behalf of the defendant. Among them and said' to, be in point are:
Pacific Mutual Life Ins. Co. v. McCabe,
“Their testimony warranted the jury under the facts in concluding that the fall caused the injury to the colon, and the injury to the colon caused the effects they found in the body of the deceased, for the insured was never well after the accident.”
It was held that the collection of a disability benefit did not prevent a recovery by his beneficiary for the loss of life, and that peritonitis resulted directly from the accident. This holding is in harmony with the conclusion which we have reached.
In Scales v. National Life & Acc. Ins. Co. (Mo. App.),
“Provisions in accident insurance policies, excepting certain classes and kinds of injuries or causes of death, are recognized as valid and binding contracts and provisions by the courts of Missouri and elsewhere.”
In Harrington v. Interstate Business Men’s Acc. Ass’n,
In Order of United Commercial Travelers of America, Inc. v. Edwards (C. C. A.), 51 F. (2d) 187, 188, it appears that “the insured accidentally fell out of an automobile and struck his side or lower abdomen against the running board; the blow left a red and inflamed mark, which disappeared by the third day. The skin was not broken. A doctor was called the third: day after the accident, and discovered a mass in the region of the caecum and the appendix; that night the insured was operated on. The appendix, the caecum and the bowels were gangrenous and highly infected. Four days later he died of a bloodstream infection, a general septicemia.”
The constitution of the Order declared that it should not he liable for death “whether caused by accidental means, or not, to-wit: Appendicitis * * * poisoning, * * * or any infection (unless the infection is introduced into, by or through an open wound, which open wound must be caused by external, violent and accidental means and be visible to the unaided eye). * * *”
The court said that death from appendicitis as contended for was a debatable question, and although undoubtedly caused by infection that this infection was not introduced through an open wound and a recovery was denied.
There are expressions in these opinions which tend to sustain the defendant’s contention. As reasons therefor they are entitled to weight hut are not conclusive.
Reliance is placed upon Buffo v. Mutual Ben. Health & Acc. Ass’n,
At the risk of repetition we again invite attention to the policy itself and to its framework.
Parts A and B deal with a death loss and purport to deal finally with such a claim. Then follow provisions for disability benefit which in number threaten to exhaust the possibilities of the alphabet. One line in “Part M” again takes up accidents which are fatal, sets aside all that has been said, and in' this case wipes away the right to recover. Such at least is the claim now made and it is a fraudulent claim.
We restate in short form our conclusions. “Part M” was intended to give to the insured in certain circumstances coverage under “K” and “L” not theretofore granted. A man may be sick and then die.
If this be not the purpose of “M” then in the instant case it is a fraud upon the insured.
The purpose to keep apart injuries and their consequences from ordinary sickness as to sources from which recovery may be had is manifested again and again in the policy. In its insuring clause they are “respectively” dealt with. .
The judgment appealed from should be affirmed, and it is so ordered.
Affirmed.