Jones v. Hawkeye Commercial Men's Ass'n

Evans, J. 1. Insurance: accident insurance: death by gas: exemption. The defendant is a mutual accident association. The deceased was concededly a member in good standing at the time of his death. The plaintiff was the beneficiary under the certificate. The death the deceased resulted from asphyxiation from escaping gas in a hotel room wherein he slept. It was, therefore; presumably accidental. The insurance certificate specifically excepted from its operation death from certain specified'causes, including the inhalation of gas. This particular exception was set forth in the insurance certificate as follows: “That the association shall not be liable to any mem [1301] ber or beneficiary for any indemnity for accidental death * * * resulting wholly or partially, directly or indirectly, from any of the following causes, conditions or acts or when the member is under the influence of or affected by any such cause, condition or act, to wit * * * from * * * gases or anything accidentally or otherwise tahen, administered, absorbed, injected, inserted or inhaled * * * each of the foregoing causes, conditions or acts are expressly excepted from all the provisions of these by-laws granting to members or beneficiaries thereof, benefits or indemnities. Provided, further, that the association shall not be liable * * * for indemnity for any death, resulting wholly or in part from * * * gases * * * accidentally or otherwise tahen, administered, absorbed, injected, inserted, or inhaled:”- The contention of the appellant is that the foregoing provisions of the certificate should not be held to except from its operation a case of accidental asphyxiation by gas, but that the same were intended to cover only cases of intentional inhalation of gas. The following authorities are cited in support of the contention: Paul v. Travelers’ Ins. Co., 112 N. Y. 472; Menneiley v. Employers’ L. Ass. Corp., 148 N. Y. 596; Pickett v. Pacific M. L. Ins. Co., 144 Pa. St. 79; Fidelity & Cas. Co. v. Waterman, 161 Ill. 632; Travelers’ Ins. Co. v. Ayers, 217 Ill. 390; Fidelity & Cas. Co. v. Lowenstein, 38 C. C. A. 29. [1302] 2. Contracts: construction: arbitrarily drafted contracts. [1301] Though some of these cases may be differentiated, in some respects, from the case at bar, on the whole they fairly sustain the appellant’s argument, and we face the responsibility of agreeing or disagreeing with them. We are unable to yield our assent to the soundness of the reasoning put forth in the cited cases. To our minds, it is a clear and arbitrary contradiction of the very terms of the certificate, as above quoted. We see no room for candid dis [1302] pute as to the meaning or construction of the terms used. If the language above quoted does not unequivocally, by its terms, except from the operation of the certificate accidents of this class, then we are unable to conceive of any language which could be used to such end. It is clearly true that all doubtful construction should be solved in favor of the insured, but such rule does not warrant an arbitrary judicial contradiction of the terms of the instrument. The right of the association to make such exception is not questioned, there being no legislative inhibition against it. As a matter of public policy, much could be said in favor of such legislative inhibition. But that question belongs to the legislative field, and does not come within the scope of judicial power. In the absence of inhibitive legislation, we are in duty bound to give effect to these exceptions as they are written. To say that the clause, “death resulting wholly or in part from gas accidentally or otherwise taken or inhaled,” should be construed to mean, “gas accidentally and voluntarily inhaled,” is not only a contradiction of the terms of the certificate, but is a self-contradiction. The exception covers the taking or inhalation of gas, “accidental or otherwise.” The asphyxiation involved in this case was confessedly caused by the taking or inhalation of gas, accidentally “or otherwise.” If this were an action upon a life insurance policy, a somewhat different question would be presented; but accident insurance only is involved. If the death did not result from accident, there was no liability. The presumption obtains in favor of the plaintiff that the taking was accidental’. For the purpose of this case, then, it was accidental. If the gas was inhaled accidentally, it was not inhaled voluntarily. How, then, could the provision of the exception be construed to mean, “gas accidentally and voikontari [1303] ly inhaled?” Such a construction simply inserts arbitrary contradiction into the plain terms of the exception. The unsoundness of the holding was well set forth by Judge Sanborn, in his dissenting opinion in Fidelity & Cas. Co. v. Lowenstein, supra, as follows: “I am unable to concur in the decision and opinion of the majority in this case. My mind will no more yield its assent to the proposition that an injury from poison involuntarily and unconsciously taken, or inhaled, is not included within the exception of ‘injuries fatal or otherwise resulting from poison or anything accidentally or otherwise taken, administered, absorbed or inhaled’ than it will to the mathematical proposition that two and two are five. The assent to either, and to one as much as to the other, brings to it a certain feeling of self-stultification, to which it will not subject itself. It seeks in vain for answers consistent with the former proposition, to the question: If gas is unintentionally and unconsciously taken or inhaled, why is it not ‘accidentally’ táken or inhaled? If it is not, then why is it not ‘otherwise’ taken or inhaled? And how can gas get into the system in any other way than by being ‘accidentally or otherwise taken, administered, absorbed or inhaled?”’ We can conceive of no fair answer that can be made to the above reasoning. • To award recovery in this case would be to make arbitrarily a new contract between the parties. This is a mutual association. By the terms of its certificate, its members have clearly chosen not to insure each other against death from the cause here indicated. By these provisions, the'insured was at all times protected against assessments for death from such cause. He had the full benefit of the exception during his lifetime. Why, therefore, should not his co-members continue to have the benefit of it; now as [1304] well as hitherto? We think the trial court properly directed the verdict, and its-order is — Affirmed. Preston, C. J., Ladd, Gaynor, and Stevens, JJ., concur.