Opinion
No. 32570.
February 8, 1937. Suggestion of Error Overruled March 22, 1937.
1. INSURANCE. Declaration alleging that poison was administered by another held insufficient to authorize recovery under double indemnity clause of life policy for accidental death, but excepting double indemnity if death resulted from taking of poison, whether voluntary or otherwise, since the liquid containing the poison when accepted and drunk by insured was "taken" by him, the word "administer," as used in the declaration, meaning dispensed, served, or supplied, and the word "take" being used with reference to the reception into the human body of poison.
The word "take" has many shades of meaning, precise meaning which it is to bear in any case depending on the subject with respect to which it is used. It means to introduce or receive into one's body; to swallow, inhale, or imbibe as to take food, drink, gas, snuff or medicine.
2. INSURANCE. Declaration alleging that poison was administered to insured by another held not to authorize recovery of double indemnity for accidental death under life policy which excepted double indemnity if insured's death resulted from taking of poison, whether voluntary or otherwise, on ground that taking of poison was accidental, because insured did not know that the liquid contained poison and therefore did not intend to take it, since the words "voluntary or otherwise" excluded from double indemnity, death from intentional or unintentional taking of poison.
"Otherwise" is a compound word formed by adding the suffix "wise" to the word "other," and the word "wise" when used as an adverbial suffix denotes way, manner, respect. Thus, the word "otherwise" means in a different manner; in another way; or in other ways; contrarily.
3. INSURANCE.
Words "voluntary or otherwise," as used in provision in life policy providing double indemnity for accidental death, but which excepted death resulting from taking of poison, whether "voluntary or otherwise," were required to be given their usual and ordinary meaning, unless the purpose for and the circumstances under which they were used indicated that a different meaning was applicable.
4. INSURANCE.
Where liability for death from taking poison "whether voluntary or otherwise" was excluded from operation of double liability clause of life policy, that all liability for death caused by another was not excluded, and that death from taking poison administered by another was not expressly excluded would not permit recovery for death of insured by such means, since purpose to exclude such liability was clearly expressed, and court could not make new policy by ignoring such purpose.
APPEAL from circuit court of Leflore county. HON. S.F. DAVIS, Judge.
H. Talbot Odom, of Greenwood, and Butler Snow, of Jackson, for appellants.
That the death of an insured, by poison intentionally, wilfully and feloniously administered by a third person is within the terms of an insurance policy indemnifying against death resulting from bodily injury effected solely through external, violent and accidental means, is so well settled in this state and elsewhere that we make reference to only a few of the many cases and authorities:
Sovereign Camp, W.O.W. v. Beasley, 169 Miss. 310; Woods v. Provident Life Acc. Co., 240 Ky. 398; Zurich General Accident Liability Ins. Co. v. Flickinger, 33 F.2d 853; Fidelity Casualty Co. v. Johnson, 72 Miss. 333; Holmes v. American-National Ins. Co., 142 Miss. 636; Houston v. Continental Cas. Co., 142 Miss. 389; Provident Life Acc. Ins. Co. v. McWilliams, 146 Miss. 298; 14 R.C.L. 1238, 1251; 7 A.L.R. 1141.
The principal question is whether the death of an insured by poison intentionally, wilfully and feloniously administered by a third person is within the provision of an exception in an insurance policy excluding liability for death by accidental means where death resulted "from the taking of poison . . . whether voluntary or otherwise."
Had appellee intended to exclude liability for death resulting from the circumstances alleged in the declaration, it might have effectively and without doubt done so by employing any one of three simple provisions quite frequently found in double indemnity clauses of life insurance policies. It might have done so by providing that the double indemnity should not be payable if: (a) the insured's death resulted from intentional injuries inflicted on the insured by a third person; (b) the insured's death resulted from poison administered to the insured by a third person; or (c) the insured's death resulted from poison.
At an early date in this state, and in many other states, it was held that death from intentional injuries inflicted by a third person or by murder were within the general terms of an insurance policy indemnifying against death from bodily injury effected solely through external, violent and accidental means.
Fidelity Cas. Co. v. Johnson, 72 Miss. 333.
And to avoid liability in such cases, the insurance companies many years ago inserted provisions relieving of liability whether death resulted from the intentional act of another (Houston v. Continental Casualty Co., 142 Miss. 389), which means and includes a death by murder.
Travelers' Ins. Co. v. McConkey, 127 U.S. 661, 32 L.Ed. 308; Joyce on Insurance, sec. 2618; 30 L.R.A. 208; 48 L.R.A. (N.S.) 524; Holmes v. American-National Ins Co., 142 Miss. 636; Life Acc. Ins. Co. v. McWilliams, 146 Miss. 298.
Now if appellee had intended to exclude liability for the death of the insured caused by murder, it should have by appropriate language said so, and this it has not done.
Paul v. Travelers Ins. Co., 112 N.Y. 472, 3 L.R.A. 443; Pickett v. Pacific Mutual Life Ins. Co., 144 Pa. 79, 13 L.R.A. 661; Fidelity Cas. Co. v. Waterman, 59 Ill. App. 297; Fidelity Cas. Co. v. Waterman, 161 Ill. 632, 32 L.R.A. 654.
It seems that, in order to obviate the effect of these decisions, the exemption clauses were by many companies broadened to exclude liability resulting "from poison or anything accidentally or otherwise taken, administered, absorbed or inhaled."
Preferred Acc. Ins. Co. v. Robison, 45 Fla. 625, 61 L.R.A. 145, 33 So. 1005.
Now it will be noted that the policy here involved does not exclude liability for death from poison generally, nor does it exclude liability for death from poison administered to the insured by a third person.
Counsel are driven to the claim that liability is excluded by the exception in the policy which provides "Double Indemnity shall not be payable if the Insured's death resulted . . . from the taking of poison . . . whether voluntary or otherwise." Now it is perfectly clear that the clause quoted does not exclude death from poison in all instances.
Dent v. Railway Mail Assn., 183 Fed. 840; Sarah v. State, 28 Miss. 267; Johnson v. State, 92 Ga. 36; Blackburn v. State, 23 Ohio St. 146, 162; LaBeau v. Peoples, 34 N.Y. 223; Knights of the Golden Rule v. Ainsworth, 71 Ala. 436, 46 Am. Rep. 332.
An act making the felonious administering of poison criminal includes the act of compelling a person to take poison by acts of violence. Neither deception nor breach of confidence is a necessary ingredient in the act. If the poison reaches the stomach or body of the deceased and does its work of death there, it is immaterial whether force or fraud was the means by which the guilty agent affected his object.
Blackburn v. State, 23 Ohio St. 146.
The word "administer" will be construed to embrace every mode of giving it or causing it to be taken as putting poison in bread.
LaBeau v. People, 34 N.Y. 223; Knights of Golden Rule v. Ainsworth, 71 Ala. 436, 46 Am. Rep. 332.
It must be remembered that the clause is in the nature of an exception and operates to take death from poison under certain circumstances, without the general terms of the policy, and under familiar rules must, therefore, be strictly construed.
Cooley's Briefs on Insurance 5294.
It is a familiar rule that the terms of an accident policy should be understood in the plain, ordinary, usual and popular sense.
Ferguson v. Provident Life Acc. Ins. Co., 170 Miss. 504; Hart v. North American Accident Ins. Co., 154 Miss. 400; Joyce on Insurance, sec. 216; Southern Home Ins. Co. v. Wall, 156 Miss. 865.
Where the terms of an insurance policy will bear two interpretations, that one will be adopted which sustains the claim for indemnity.
Shivers v. Farmers' Mutual Fire Ins. Co., 99 Miss. 744; New York Life Ins. Co. v. Blaylock, 144 Miss. 541.
It is fundamental that a contract of insurance prepared by the insurance company will be construed liberally against the insured and strictly as against the company.
Boyd v. Miss. Home Ins. Co., 75 Miss. 47; Stephens v. Railway Officials' Employees' Acc. Assn., 75 Miss. 84; Eminent Household of Columbian Woodmen v. Bunch, 115 Miss. 512; U.S.F. G. Co. v. Hood, 124 Miss. 548; Home Ins. Co. of New York v. Moore Rawls, 151 Miss. 189; Southern Home Ins. Co. v. Wall, 156 Miss. 865; Mutual Benefit Health Accident Assn. v. Blaylock, 163 Miss. 567.
The provisions of an insurance policy should not be construed in favor of the insurer unless clearly required by the policy.
Murray v. Metropolitan Life Ins. Co., 145 Miss. 266.
Policies using chosen language and apt terms to avoid under circumstances specified are construed strictly against the insurer.
New Amsterdam Cas. Co. v. Perryman, 162 Miss. 864; Travelers Ins. Co. v. Dunlap, 160 Ill. 642, 52 Am. St. Rep. 355.
Louis H. Cooke, of New York City, and Watkins Eager, of Jackson, for appellee.
The circuit judge committed no error in sustaining the appellee's demurrer to the appellant's declaration.
The appellee has the right by contract to limit its coverage.
Lavender v. Volunteer State Life, 171 Miss. 169; Am. Life v. Nidlinger, 113 Miss. 74; Continental Cas. Co. v. Hall, 118 Miss. 871; U.S.F. G. v. Bank, 150 Miss. 386; So. Home Ins. Co. v. Wall, 156 Miss. 865; Mutual Life v. Meeks, 157 Miss. 97; Georgia Cas. Co. v. Product Co., 159 Miss. 396; New Amsterdam Co. v. Perryman, 162 Miss. 864; Berry v. Lamar Life, 165 Miss. 405; Brotherhood v. Bridges, 164 Miss. 356; Ferguson v. Provident Life, 170 Miss. 504.
The provision involved is clear and explicit and needs no construction.
Webster's New International Dictionary; State v. Stuart, 88 Miss. 406; Lebeau v. People, 34 N.Y. 232; Aven v. State, 277 S.W. 1080; Leary v. State, 82 S.E. 471; State v. Stapp, 151 S.W. 971; Maryland Cas. Co. v. Hudgins, 64 L.R.A. 349; Dent v. Railway Mail Assn., 183 Fed. 840.
Every reported case maintains non-liability of the insurer under the facts in this case.
King v. New York Life, 72 F.2d 620; Hawkeye Com. Assn. v. Christy, 294 Fed. 208; N.Y. Life v. Murrell, 65 F.2d 990; Minner v. Great Western, 162 P. 1160; Miller v. Mercantile Acc. Assn., 153 N.E. 427; Kennedy v. Aetna Life, 72 S.W. 602; Urian v. Scranton Life, 165 A. 21; Northern Trust Co. v. Central Life, 274 Ill. A. 551; Birss v. Travelers of Am., 190 N.W. 486; New Amsterdam Cas. v. Perryman, 162 Miss. 864; Maryland Cas. v. Hudgins, 64 L.R.A. 349; Safe Deposit Co. v. N.Y. Life, 14 F. Supp. 721, 84 F.2d 1011.
We direct the attention of the court to the fact that the policy does not use the word "intentional" poisoning; nor does it use the word "administered" poison. It does not use these specific terms because the language used is so all-inclusive and comprehensive as that it was not necessary to itemize the methods of taking poison which were excluded from the coverage. The policy states that the double indemnity provision does not apply if death resulted "from the taking of poison or inhaling of gas, whether voluntary or otherwise." If the poison was administered (in the sense of given) to the decedent intentionally by a person with a felonious intent, and the insured took the same, that is to say, drank the liquid containing poison and took the same into his system, then such accidental death is not covered. It was not necessary for the appellee in its policy to say that it did not cover poison taken which was caused to be taken by somebody or which was procured and given insured with felonious intent. The policy, by sweeping terms, excluded all coverage where the poison was taken for any reason or from any cause whatsoever, or in any manner or by any method, whether intentionally, by mistake, or if caused to be taken by force or by fraud. The case could not turn upon the question of whether or not the third person administered the poison to the insured decedent. It could not turn upon the point of whether or not the third person handed the poison to the insured decedent with felonious intent. Liability turns upon the question of whether or not the insured took the poison, voluntarily or otherwise. If the insured took the poison from any cause, or for any reason or under any circumstances, the policy says there is no liability.
Carnes v. Iowa State Traveling Men's Assn., 106 Iowa 281, 68 Am. St. Rep. 306, 76 N.W. 683; Kasten v. Interstate Cas. Co., 99 Wis. 73, 40 L.R.A. 651, 74 N.W. 534; Early v. Standard Life Acc. Ins. Co., 113 Mich. 58, 67 Am. St. Rep. 445, 71 N.W. 500; Pollock v. U.S. Mut. Acc. Assn., 102 Pa.. 234, 48 Am. St. Rep. 204; McGlother v. Provident Mut. Acc. Co., 32 C.C.A. 318, 60 U.S. App. 705, 89 Fed. 685; Westmoreland v. Preferred Acc. Ins. Co., 14 Blatchf. 143, Fed. Cas. No. 1,138; Cole v. Accident Ins. Co., 61 L.T.N.S. 227.
Argued orally by H. Talbot Odom and Geo. Butler, for appellant, and by W.H. Watkins, Sr., for appellee.
This is an action at law in which the appellants seek to recover on the double indemnity clause in an insurance policy issued by the appellee to John P. Kennedy, wherein the appellant, his widow, is the beneficiary. A demurrer to the declaration was sustained and, the appellant having declined to plead further, a final judgment was rendered dismissing the action.
The policy, made an exhibit to the declaration, provides for the payment to the beneficiary of $2,000 on the death of the insured "or Four Thousand Dollars (Double the Face of this Policy) if such death resulted from accident as defined under `Double Indemnity' on the second page hereof and subject to the provisions therein set forth. . . . The Double Indemnity provided on the first page hereof shall be payable upon receipt of due proof that the death of the Insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means and occurred within ninety days after such injury. Double Indemnity shall not be payable if the Insured's death resulted from self-destruction, whether sane or insane; from the taking of poison or inhaling of gas, whether voluntary or otherwise; from committing an assault or felony; from war or any act incident thereto; from engaging in riot or insurrection; from participation as a passenger or otherwise in aviation or aeronautics; or, directly or indirectly, from infirmity of mind or body, from illness or disease, or from any bacterial infection other than bacterial infection occurring in consequence of accidental and external bodily injury. The Company shall have the right and opportunity to examine the body, and to make an autopsy unless prohibited by law. . . . The total premium stated on the first page hereof includes a . . . annual premium of $2.00 for the Double Indemnity Benefit."
The declaration alleges the payment by the appellee to the appellant of $2,000, but that the appellee denies liability under the double indemnity clause of the policy, and prays for a recovery thereon, in support of which the declaration further alleges "that on August 6th, 1933, and when said policy of insurance was in full force and effect, that the insured, John P. Kennedy, died; that the death of the said John P. Kennedy resulted directly and independently of all other causes from bodily injury effected solely through external, violent, and accidental means, that is to say, the said John P. Kennedy died as a result of mercurial poison, unlawfully, wilfully, feloniously, and with malice aforethought administered to him, the said John P. Kennedy, by a third person, to-wit: Dr. Sarah Ruth Dean, which said poison was contained in a supposedly harmless liquid, unlawfully, wilfully, feloniously and with malice aforethought given him, the said John P. Kennedy, by the said Dr. Dean, to be drunk by him, and which said liquid was drunk by him, the said John P. Kennedy, without any knowledge whatever that said liquid contained poison, or without any reason on his part to believe or suspect that the same contained poison, and death resulted to the said John P. Kennedy from said poison administered, as aforesaid; that the said Dr. Sarah Ruth Dean has since been indicted, tried and convicted in this Court for the crime of murder of the said John P. Kennedy, because of her having administered said poison, as aforesaid, to him, the said John P. Kennedy, and the said conviction has been affirmed by the Supreme Court [Dean v. State, 173 Miss. 254, 160 So. 584, 162 So. 155], and the death of the said John P. Kennedy occurred within ninety (90) days after said poison was administered to him as aforesaid and within ninety (90) days after said injuries were inflicted upon him, as aforesaid."
The question for decision is, Was the death of the insured within the provisions of the policy that "double indemnity shall not be payable if the insured's death resulted . . . from the taking of poison . . . whether voluntary or otherwise?" Specifically, did the insured take poison, and if he did, was the taking within the meaning of the words "voluntary or otherwise?"
The word "`take' has many shades of meaning; the precise meaning which it is to bear in any case depends upon the subject with respect to which it is used." 60 C.J. 1208. It is here used with reference to the reception into a human body of poison. Cf. State v. Stuart, 88 Miss. 406, 40 So. 1010. In this connection, the word "take," according to the lexicographers, means "to introduce or receive into one's body; to swallow, inhale, or imbibe, as to take food, drink, gas, snuff or medicine." The liquid containing the poison was here given to the insured by another, nevertheless when he accepted and drank it, it was taken by him. Maryland Casualty Co. v. Hudgins, 97 Tex. 124, 76 S.W. 745, 64 L.R.A. 349, 104 Am. St. Rep. 857, 1 Ann. Cas. 252.
The declaration alleges that the poison was "administered to the insured by another," but it is clear from the declaration that the pleader meant thereby that the poison was given by another to the insured, and moreover the word "administer" in this connection can only mean "dispensed, served or supplied." But the appellant says, in substance, that if she is mistaken in saying that the insured did not take the poison, then the taking was accidental within the meaning of the policy, because the insured, when he drank the liquid, did not know that it contained poison, and therefore did not intend to take it. It may be, as to which we express no opinion, that the taking of poison under such circumstances is not voluntary, but the policy does not stop with excluding the voluntary taking of poison, for the word "voluntary" therein is followed immediately by the words "or otherwise." "Otherwise" is a compound word, formed by adding the suffix "wise" to the word "other," and the word "wise" when used as an adverbial suffix denotes "way, manner, respect," Webster's New International Dictionary (2d Ed.); consequently, the word "otherwise" means "in a different manner; in another way; or in other ways; contrarily." Webster's op. cit.; 46 C.J. 1151. On its face, therefore, the policy excludes from its double liability clause death from the intentional or unintentional taking of poison. Such being the usual and ordinary meaning of the words "voluntary or otherwise," it must be here given them, unless the purpose for, and circumstances under, which they were here used indicate that a different meaning is applicable. 1 Restatement Contracts, section 235; Goosey v. Goosey, 48 Miss. 210; Mississippi Mutual Ins. Co. v. Ingram, 34 Miss. 215.
Counsel, however, invoke the rule that a writing must be interpreted as a whole, and say, in effect, that when this is here done it will appear that the death of the insured is within the policy's double indemnity clause. In support of this, they say "that the policy does not exclude liability for death caused by intentional injury inflicted on the insured by a third person, or death by murder of the insured." From this counsel say, in effect, that the words "voluntary or otherwise" should be construed as not intended to include an unintentional taking of poison by the insured, given him by another with intent to kill and murder him. In further support of which they say that if the appellee had intended to exclude from the double indemnity clause the giving of poison by another to the insured with intent that he should take it and thereby cause his death, it could have so provided in apt language, setting forth what language the insured could have used for that purpose. It is true that the policy does not exclude all liability where the death of the insured is intentionally caused by another, but that fact is of little, if any, value in interpreting the particular clause of the policy here in question which doubles the insurer's liability for the death of the insured under particular circumstances. The circumstances, other than the death of the insured under which the double liability arises, have no bearing on the insurer's liability for the $2,000 payable without reference to the cause or manner of his death. It is also true that double liability for the death of the insured caused by the taking of poison, intentionally given to him by another for that purpose, could have been aptly excluded by language other than that used, but nevertheless the words "voluntary or otherwise" also clearly and aptly express the insurer's purpose so to do, and it had the right to select its own words therefor. In order to give the clause the construction put on it by the appellant, it would be necessary for us, under the guise of construing the policy, to add after the words "voluntary or otherwise" some such words as "unless given the insured by another with the intent that it should be taken by him." So to do would be, not to construe the policy but, to make a new one. King v. New York Life Ins. Co. (C.C.A.), 72 F.2d 620; Hawkeye Commercial Men's Association v. Christy (C.C.A.), 294 F. 208, 40 A.L.R. 46.
No case has been brought to our attention which, on its facts, covers the exact contention of counsel for the appellant, and the cases cited by them do not negative but, on the contrary, support the conclusion at which we have arrived.
Affirmed.