This is an action to recover under the double indemnity provisions of an insurance policy which were applicable in case of accidental death. Defendant appealed from a judgment for plaintiff after a trial by the court.
Plaintiff’s decedent had cancer of the brain which rendered him weak, spastic, and unable to control his movements fully or to stand by himself. He was a bed patient in a nursing home. Side rails and a chest strap were used to keep him from getting out of bed. The trial court found that he had attempted to get up and, in so doing, became entangled with the chest strap, whereby he strangled to death. In our opinion, there was sufficient evidence to sustain such a finding. There was also evidence from which it must necessarily be concluded that the accident would not have occurred but for decedent’s debilitated condition resulting from disease.
The policy of insurance in question provided that double indemnity would be payable:
* * Upon receipt * * * of due proof of the accidental death of the Insured which directly shows that: (1) Death resulted solely from an accidental bodily injury * *
It defined “accidental death” as:
“* * * death resulting directly and solely from * * * [a]n accidental injury * *
*455 It further provided that the benefit was not payable if:
“* * * the Insured’s death results, directly or indirectly, or wholly or partially, from (1) Any infection or bodily or mental infirmity or disease existing before or commencing after the accidental injury, * *
The thrust of defendant’s assignments of error is to the effect that the trial court was mistaken in finding that decedent’s death came about directly and solely as the result of an accidental injury and that it did not result directly or indirectly from any bodily or mental infirmity or disease.
1. This court has recently and previously dealt with the construction of similar policies in situations where the insured had an accident, and injuries suffered in the accident combined with a pre-existing infirmity or disease
to cause his death. See Tabler v. Standard Insurance, 257
Or 166,
In the present situation, death resulted solely from asphyxiation caused by strangulation, and was a death * * resulting directly and solely from *
* *
an accidental injury # * The exclusion from coverage relates to the cause of death — not to a cause of the accident. Decedent died from strangulation — not cancer. For cases in which the same result is reached
*456
in the face of not always identical hut somewhat similar language,
see: Manufacturers’ Accident Indemnity Co. v. Dorgan,
58 F 945, 954 (6th Cir 1893), 22 LRA 620;
Sturm v. Employers’ Liability Assur. Corp. Ltd.,
212 Ill App 354, 364 (1918);
Wells v. Prudential Insurance Co.,
2. If it was the intention of the defendant that the policy not cover death caused solely as the result of injuries suffered in an accident where a cause of the accident is infirmity or disease, it should have more clearly expressed such intention. Ambiguous policies are construed against the company which draws them.
Defendant rests its contention upon
Seater v. Penn. Mut. Life Ins. Co.,
The judgment of the trial court is affirmed.