Meehan v. Traders & Travelers Accident Co.

Plaintiff, while the holder of a certificate of membership in the defendant company, insuring him against bodily injuries, during his membership, sustained certain injuries on August 23, 1899, by a woman throwing carbolic acid in his face. Plaintiff recovered judgment at Trial Term of the City Court, which was affirmed upon appeal to the General Term of that court, and an appeal from such affirmance taken to this court. The question here presented for consideration arises by reason of one of the conditions contained in the certificate of membership, upon which this suit is founded, wherein it was stipulated that the defendant should not be liable for “ injuries fatal or otherwise, resulting directly or indirectly from or in any wise contributed to by * * * poison in any form or manner, or contact with poisonous substances.” It is conceded that carbolic acid is a poison, but plaintiff contends that the injuries resulting from the effects of the throwing of the carbolic acid were not caused by “ poison in any form or manner, or contact with poisonous substances,” within the meaning of the membership certificate, claiming the word “ poison ” therein is used in its ordinary meaning, as a substance taken internally. It would seem that this position is assumed because of the opinion of the presiding justice in the case of Bacon v. U. S. Mutual Accident Assn., 44 Hun, 599, and appears to be the sole basis for this contention. A reference to the opinion discloses the fact that, in that case (p. 602), the insured stated in his application for insurance that hé was aware that the benefits “will not extend * * * to death or disability caused wholly or in part * * * by talcing of poison in any form or manner.” There, the application was made part of the certificate and the expression of opinion of the learned presiding justice was made in view of the use of the word “ taking.” The ease was reversed upon appeal *160(123 N. Y. 304), but the opinion of the Court of Appeals does not touch upon the point here under consideration. There is a very evident distinction between the use of the words “ by taking' of poison ” and “ by poison.” The expression “ by taking of poison ” may very well be held to mean the internal use of poison, but such cannot be considered the meaning of the words of the certificate in this case, except by a forced construction. This distinction is pointed out by Judge Gray in his opinion in the case of Paul v. Travelers Ins. Co., 112 N. Y. 472, 478, where the words “ inhaling of gas ” were under consideration in connection with a clause in a policy relieving defendant from liability for injuries occasioned by the “ inhaling of gas.” The court there held that those words applied only to a voluntary and intelligent action on the part of the insured. The death of the insured was occasioned by the gas being turned on in a room where the insured was sleeping and breathing the air, impregnated with the gas. Judge Gray said: “ If the policy had said that it was not to extend to any death caused wholly or in part by gas, it would have expressed precisely what the appellant now says is meant by the present phrase, and there could have been no room for doubt or mistake.” Here the words of the certificate are “ by poison ” and not “ by taking poison,” making the language of Judge Gray directly in point. The further contention of plaintiff that, by the subsequent words “ contact with poisonous substances,” is meant and intended a voluntary and conscious action of plaintiff, is likewise without force. This argument is based upon the Paul case, just cited, and that of Menneiley v. Employers' L. Assur. Corp., 148 N. Y. 596, in both of which the decisions are predicated upon the use of the word “ inhale ” in connection with gas, and, therefore, can have no application here, for neither that word nor any words of similar effect are found in the membership certificate in this case.

The rule is well settled that where the meaning of words in such a certificate, as is here under consideration, is in doubt, they should be construed most strongly against the insurer and the benefit of all doubt given to the insured. In this case the meaning is clear and beyond any doubt. McGlother v. Provident Mut. Acc. Co., 89 Fed. Rep. 685. The injuries suffered by plaintiff were occasioned “ by poison,” or by “ contact with poisonous substances,” within the meaning of the certificate.

*161The judgment and order of the City Court of the city of Uew York must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Andrews, P. J., and O’Gorman, J., concur.

Judgment and order reversed, and new trial ordered, with costs to appellant to abide event.