213 F. 981 | 8th Cir. | 1914
This case involves the liability of the Railway Mail Association, an incorporated fraternal benefit society, under a certificate of accident insurance issued to James Dent for the benefit of his wife, Ella S. Dent. The association promised by the certificate to pay Mrs. Dent $3,000 in case her husband “received injuries through external, violent, and accidental means, resulting in his death from such injuries within 120 days.” The constitution and by-laws of the association provided as follows:
“No benefit or sum whatever shall be made payable in any case whatsoever unless the accident alone results in producing visible external marks *bf injury or violence suffered- by the body of the member, nor unless the death or disability results wholly from the injury and within 120 days-from the date thereof. Nor shall any benefit be paid where death or disability results from * * * poison or other injurious matter taken or administered accidentally or otherwise. * * * Accidental death shall be construed to be either sudden violent death from external causes, * * * or death within 120 days from injuries received by accident alone.”
While in the woods in the suburbs of St, Paul, Minn., Dent accidentally came in contact with poison ivy, with the result that an eruption appeared between his fingers two or three days afterwards, and grew until it covered his limbs and body and in about seven weeks caused his death.
“I think in popular phraseology, from which we are to seek our guidance, it [the act] excludes, and was intended to exclude, idiopathic disease; but when some affection of our physical frame is in any way induced by an accident, we must be on our guard that we are not misled by medical phrases to alter the proper application of the phrase ‘accident causing injury’ be*983 cause the injury inflicted by accident sets up a condition of things which medical men describe as disease. Suppose in this case a tack or some poisoned substance had cut the skin and set up tetanus. Tetanus is a disease; but would anybody contend that there was not accident causing damage?”
Finally, death must not have resulted from poison or other injurious matter “taken or administered” accidentally or otherwise. This phrase has a more limited meaning than that claimed by counsel for the association. Of course the poison or injurious substance was not “admintered,” as that ordinarily contemplates the affirmative action of another person. Nor do we think it was “taken.” If the insured had accidentally fallen into a vessel of corrosive liquid, or had been injured by the bursting of a carboy of vitriol, to which he did not contribute it would not be said the injurious substance was taken or administered. The term “taken,” which is nearest the case before us, signifies in its text an internal taking, and not an accidental external contact. In McGlother v. Provident, etc., Co., 32 C. C. A. 318, 89 Fed. 685, the insurance excluded injuries from poison or “contact with poisonous sub- - stances.” In Preferred Accident Ins. Co. v. Robinson, 45 Fla. 525, 33 South. 1005, 61 L. R. A. 145, 3 Ann. Cas. 931, it did not cover injuries “from any poison or infection, or from anything accidentally or otherwise taken, administered, absorbed, or inhaled.” The language was substantially the same in Kasten v. Casualty Co., 99 Wis. 73, 74 N. W. 534, 40 L. R. A. 651, and Maryland Casualty Co. v. Hudgins, 97 Tex. 124, 76 S. W. 745, 64 L. R. A. 349, 104 Am. St. Rep. 857, 1 Ann. Cas. 252. Such cases are not in point here. So many and varied are the causes of accidental injury that the particular language employed in instruments of insurance is of the greatest importance. A word added or omitted may alter materially the scope of the indemnity. Many cases like the one at bar lie close to the border line perhaps, because not definitely in mind for inclusion or exclusion; but it is a delicate thing for a court to adopt the latter course merely upon a supposition that-they would have been excluded in terms had they been thought of. The insurer most familiar with the subject chooses the words of his undertaking, and it is not unjust to take them in the
The order will therefore be that if Mrs. Dent will, within 60 days after the filing of this opinion, file in the trial court a remittitur of $1,000 and interest from December 1, 1909, and also file a certified copy thereof in this court, the judgment so reduced will be affirmed; otherwise, it will be reversed, and the cause remanded for a new trial.