75 F. 244 | U.S. Circuit Court for the Northern District of Georgia | 1896
The plaintiff brings her suit on an accident insurance policy issued to her husband by the defendant company. The insured died on the 12th day of July, 181)5. The case is now' heard on a demurrer which is interposed on the ground that the declaration sets forth no cause of action. The case, as made by ¡he declaration and the amendments thereto, is this: A policy of insurance, issued to (he insured in his lifetime, and which was in force at. the tune of Ms death, granted Mm insurance, in the sum of $5,000, in consideration of certain annual premiums, against death from bodily injury caused solely by external, violent, and accidental means. ' By the terms of the policy it was stipulated ¡hat títere should bo no liability on the part of the company in case of death from certain enumerated causes, — among them, “injury, fatal or nonfatal. resulting from * * anything accidentally or otherwise taken, administered, absorbed, or inhaled”; also, “death * resulting, either directly or indirectly, wholly or in part, from * ':t' * medical or surgical treatment.” The death of the insured occurred in this way: He was suffering from protruding piles, and it was necessary to replace the same. To relieve him from the pain this would cause, a competent physician proceeded, in a proper way, to administer chloroform in a proper quantity. Before tin1 insured was under the influence of the chloroform, but from it and an unknown cause combined, lie suffocated, became black in the face, gasped, and died. It is alleged that death would not have resulted from the action of the chloroform alone, but it was from the co-operation of the known cause — chloroform acting in an unusual and unexpected way — and an unknown cause that death resulted.
in the first place, waiving for the moment the exceptions in the policy, was the death the result of “bodily injury caused solely b,v external, violent, and accidental means”? While it is true that the policy will be given a construction favorable to the insured, so far as is consistent with the ordinary and usual meaning of the Í erms employed, still it is incumbent on the beneficiary bringing suit on the policy to show (hat the cause of death was such as would bring it within the language of the policy, so construed. Insurance Co. v. McConkey, 127 U. S. 661, 8 Sup. Ct. 1360. Conceding that the external violence need not necessarily be force from with
It is hardly necessary, however, to discuss this case in the foregoing view, for the reason that the cause of death comes clearly within two of the exceptions in the policy, as-to which it is stipulated there , shall be no liability on the part of the company. It excepts, injury, “fatal or nonfatal, resulting from * * * anything accidentally- or otherwise taken, administered, absorbed, or inhaled.” Now, so far as any facts are set out in the plaintiff’s petition, and the amendments thereto, it seems that no other conclusion can be reached than that the death of the insured resulted from the inhalation of chloroform. While it is alleged that an unknown cause cooperated with the usual effect of the chloroform in producing death, no fact whatever is stated in support of this allegation. So far as the facts are shown, chloroform was administered in a proper way, and the insured suffocated, gasped, and died. Another exception in the.policy is as to “death * * * resulting, either directly or indirectly, wholly or in part, from any of the following causes or-conditions, or while so engaged or affected: * * * Medical or-surgical treatment.” . Now, this expression, “medical or surgical.