Stephens v. Railway Officials' & Employes' Accident Ass'n

Whitfield, J., delivered the opinion of the court. The indemnity provided by the policy is broadly distinguished into two classes. First, against those injuries or death caused by external, violent, accidental, means, which leave a risible mark upon the body; and, second, against those injuries or death caused by means which leave no visible, external mark upon the body. The first category is then subdivided (a) into weekly indemnity against loss of time resulting from total disability so caused, of the amount and during the time, specified; (b) for indemnity against permanent disability, to the extent of one-half the face of the policy, on the terms specified in the clause governing that case; and (c) indemnity to the full amount of the policy, when death so results within ninety days from the injury, upon the terms in that clause stated. After this first category there follows a specific enumeration of cases in which nothing shall be paid. Then comes a wholly separate and independent paragraph — disconnected entirely from what has gone before — providing for the second category, in which fall the case's wherein no visible, external mark is left upon the body. By this independent paragraph it is provided that the appellee will pay one-tenth of the face of the policy, where “the member shall suffer an injury of which there shall be no visible, external mark on his body, sufficient to cause death, and it shall appear by an autopsy that such injury contributed to his death, or if such injuries or death shall be caused by rupture, or hernia, or contact with poisonous substances, overexertion, excessive lifting, gymnastic sports, handling or using dynamite or other explosives, or if such injuries or death shall result from the intentional acts of any person other’ than the insured, except as the result of quarreling or fighting, whether such other person be sane or insane. ’ ’ - It is to be noted carefully that there is no exception in the first category against liability, where the body shows the visible, external mark of violent, accidental death, when death is caused — 88 — by the intentional act of another than the insured. That exception applies alone to the second category. And this second category embraces the distinctive class of injuries “of which there shall be no visible, external mark on the body,” and this class may include («) cases of injuries or death caused by violent, external, accidental means, leaving no such visible, external mark; or (b) cases of injuries or death produced by secret and hidden causes, such as ‘ ‘ contact with poisonous substances, ” etc., leaving no such visible, ,external mark; or (c) cases of such injuries or death resulting from the intentional act of another than the insured, leaving no such visible, external mark. It thus clearly appears that all the cases provided for in this second category are cases in which there shall not be upon the body any visible, external mark. And the words, “such injuries or death,” preceding the words, “resulting from the intentional act of another,” etc., of Course — under the maxim, noscitur a sociis, etc. — -mean injuries or death of like kind with those just before, in the same sentence specified — “such injuries or death ” as those — that is, injuries or death where no visible, external mark is left on the body. In this case the insured came to his death by the intentional act of another, which act left its visible external mark upon the body, his head having been split open. The case falls manifestly, therefore, in the first category, and the plaintiff was entitled to recover the whole amount of the policy. It was easy for the appellee to have put in the first category an exception against liability in case the insured suffered death where a visible external mark on the body was left as a result of the intentional act of another. This it did not do, and the rule is fundamental that the provisions of insurance policies, usually prepared by the insurers, are to be construed most strongly in favor of the insured. The cases cited by learned counsel for appellee are cases where the exception against liability for death resulting from the intentional act of another, in the particular instance, was — 89 — expressly made a part of the policy. They are Travelers’ Ins. Co. v. McConley, 127 U. S., 661, and Hutchcraft’s Exrs. v. Travelers’ Ins. Co., 87 Ky., 300. The same insurance company was involved in both cases, and the clause in both policies provided, “No claim shall be made, under this policy, where the death may have been caused by . intentional injuries inflicted by the insured or any other person ” — wholly different cases. Reversed, and remanded.