76 P.2d 417 | Colo. | 1938
THESE parties appeared in reverse order in the trial court and are hereinafter referred to as there, or as the company and Mariano respectively.
This action was for double indemnity because of accidental death as provided by the terms of a life insurance policy. On trial to the court plaintiff had judgment. To review that judgment defendant prosecutes this writ. The policy in question was for $1,000 on the life of May Mariano, with plaintiff as beneficiary. It further provided double indemnity for accidental death, except "Double indemnity shall not be payable if the insured's death resulted * * * from the taking of poison or inhaling of gas, whether voluntary or otherwise; * * * or, directly or indirectly, * * * from any bacterial infection other than bacterial infection occurring in consequence of accidental and external bodily injury." It is admitted that insured's death was due to "botulism," contracted through eating home canned beans containing "bacillus botulinus." The company, having paid the face of the policy, denied double indemnity because death was due to "the taking of poison," or "bacterial infection," not *20 "occurring in consequence of accidental and external bodily injury"; and hence specifically excepted. Such is the sole question, presented by the assignments, which requires consideration. Since we think the claim of death from bacterial infection good we limit our comments thereto.
[1, 2] The cause was submitted on a stipulation, plus brief testimony. Three capable experts were examined. They differ on technical conclusions, but not on facts. They seem to agree that botulism is an "intoxication," but are not agreed that it is also an "infection." In the first it is said that the toxin which causes death is produced prior to consumption of the food, in the second after consumption. In other words that the "bug" brings his poison in with him in the first case and in the other he manufactures it after he gets in. The distinction fails to impress us. It is well settled that such terms, used in policies of insurance, are to be given their "popular interpretation" or "commonly accepted meaning." Equitable Life Assurance Society v.Hemenover,
[3] Little light is thrown upon the problem by the cases cited. None of them deal with botulism and few have any reference to bacterial infection. Practically all are concerned with the question of what is and what is not death by accident. One, however, is worthy of notice since it involved the identical exception before us, which, it was therein contended, covered food-poisoning. That position was sustained by the court. New YorkLife Ins. Co. v. Murrell,
It is said in plaintiff's amended complaint : "That said deceased on April 21, 1937, ate home canned beans containing bacillus botulinus and then and there became infected with said bacillus." This statement is repeated in the stipulation. The company here contends that death from "bacterial infection" is thus admitted. We need not go so far but this use of the expression is a most convincing circumstance supporting the applicability of the rule of "commonly accepted meaning." We doubt not that this death was due to "bacterial infection" as that expression is used in the policy and popularly understood. Hence the exception covers the case and the double indemnity clause is not applicable. *22
The judgment is reversed and the cause remanded with instructions to enter judgment for the company.
MR. JUSTICE HILLIARD, MR. JUSTICE YOUNG and MR. JUSTICE KNOUS dissent.