4 F.2d 555 | S.D. Miss. | 1925
(after stating the facts as above). This is a suit for double indemnity under a combination life and accident policy issued by the defendant company to the plaintiff’s intestate. Subject to the conditions and limitations set forth in the policy, the defendant agreed to pay $20,000 in ease of death from ordinary causes, or $40,000 if death resulted from accidental causes, or $200 per month in event of total and permanent disability. One of the limitations was a provision excepting liability for double indemnity in event of accidental death from bodily injuries inflicted by another person. There was also a general provision that, after the policy had been in force for one year from date, it should be incontestable for any cause, except for nonpayment of premium.
After the policy had been in force for more than one year the insured came to Ms death from a gunshot wound intentionally inflicted by another, death resulting immediately. The defendant has paid $20,000, the amount agreed upon in case of an ordinary death, but under circumstances which do not bar this suit in case of an additional liability. The main reliance of plaintiff is that, death having resulted more than one year after date of the policy, the incontestable prevision prohibits the defendant from showing that the accidental death here sued for was excepted from the provision in the policy for double indemnity.
The argument of counsel is ingenious and interesting. Many eases are cited, which by analogy are claimed to support the view that the incontestable clause cuts off every defense, except nonpayment of premium, but no case has been found where it was invoked with reference to the provision for increased indemnity for accidental death.
After one year the policy contained, an absolute promise to pay (1) a certain sum in ease of ordinary death; or (2) a double amount in case of a violent, accidental death not accruing under certain circumstances; or (3) monthly installments for a limited time in case of certain permanent injuries or disabilities. In the first instance it is only necessary to allege and prove the death, but in the second it is necessary to allege 'and prove an accidental death of a character embraced in the provision for double indemnity, and in the third an injury or disability, not resulting in death, of a particular kind. described in the total and permanent disability provision of the policy.
The language plainly is that the provisions for double indemnity “do not apply” in ease of death from bodily injury inflicted by another. The most troublesome feature of construction is the provision in the next clause with reference to self-destruction, “whether during the first policy year or afterwards,” which would seem to imply that the other exceptions would be ineffective after the first year; but, while this implication is persuasive, it ought not to be allowed to defeat the plain and unambiguous language of the balance of the exception, which provides that the provisions for double indemnity “do not apply” in case of death from bodily injury inflicted by another. If the provisions do not apply at all, of course they do not apply during the first policy year or afterwards. These words, therefore, were unnecessary, except in an effort to avoid a controversy. In construing a contract, it is the duty of the court to give full effect to the entire language employed by the parties; but redundancy cannot destroy the meaning of other language used in the contract, not infected with this vice. An incontestable clause in a policy of insurance providing for one of two or more benefits in ease of death, accident, or disability cannot be construed to prohibit the company from showing the particular alternative or disconnected benefit which the insured is entitled to receive. The defendant is not contesting the policy by showing facts that determine which of separate, but not necessarily cumulative, provisions of the policy apply.
The fact of death at the hands of a third party is not being invoked here by the defendant to work a forfeiture of an uneondi. tional promise to pay in case of accidental death, or to avoid an otherwise valid obligation, but is offered to prove that the accident by which the deceased met his death was not one covered by the double indemnity provision, but only insured against in the amount of any 'ordinary death, which sum has. been paid.
From these views, it follows that the bill should be dismissed.