Opinion
March 15, 1954.
July 13, 1954.
Insurance — Injury or death from accidental means — Exclusion clause — Visible marks on decedent's body — Patent ambiguity — Construction in favor of insured.
Where it appeared that an insurance policy covering injury or death from accidental means provided that it did not protect against "any loss resulting from injuries, fatal or non-fatal, except drowning of which there shall be no visible mark or contusion on exterior of the body at the place of injury, the body itself in case of death not to be deemed such"; and that decedent admittedly died from asphyxiation; it was Held that (1) the burden was upon the defendant insurer to establish that the accident was excluded by the policy; (2) the exclusion clause presented a patent ambiguity; (3) this clause was virtually meaningless and was to be construed in favor of the insured; and (4) defendant's testimony as to the absence of visible marks on decedent's body was properly excluded and judgment properly entered for plaintiff.
Before RHODES, P.J., HIRT, ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, JJ.
Appeal, No. 15, Oct. T., 1954, from judgment of Court of Common Pleas of Lancaster County, Oct. T., 1952, No. 6, in case of Agnes C. Barnes v. North American Accident Insurance Company. Judgment affirmed.
Assumpsit. Before WISSLER, J.
Verdict directed for plaintiff and judgment entered thereon. Defendant appealed.
F. Lyman Windolph, with him John I. Hartman, Jr. and Windolph Johnstone, for appellant.
Richard A. Snyder, with him Paul A. Mueller, for appellee.
Argued March 15, 1954.
This is a claim arising from the interpretation of a policy of insurance covering injury or death from accidental means. The court below entered a directed verdict for the plaintiff for the full amount of the policy.
This appeal involves an exclusion in the policy which reads as follows: "This policy does not cover the Insured . . . for any loss resulting from injuries, fatal or non-fatal, except drowning of which there shall be no visible mark or contusion on exterior of the body at the place of injury, the body itself in case of death not to be deemed such." The decedent admittedly died from asphyxiation. The defendant first filed a demurrer to the complaint because the plaintiff had not averred the existence of visible marks or contusions as set forth in the exclusion clause. The demurrer was overruled and the defendant filed an answer admitting the material allegations of the complaint but alleging as new matter that the death did not result from an injury exhibiting a visible mark or contusion. The directed verdict for plaintiff was entered after the defendant's offer of proof of absence of visible marks was denied.
The court below held that the exclusion clause was ambiguous and meaningless. The two possible interpretations were held to be either that any injury, except drowning, is excluded if unaccompanied by visible marks or contusions, or that no recovery may be had for any injury except drowning which is so unaccompanied. The absence of a comma after the word "drowning" raised the question as to whether the following phrase modifies "drowning" or relates back to the word "injuries", as contended by the defendant.
The primary purpose of this insurance policy was to protect the deceased against accidental injury or death. The death was admittedly due to an accidental asphyxiation. To deny recovery the death must clearly come within one of the exclusions. The exclusion clause in question presents a patent ambiguity. Although ambiguities caused solely by punctuation will be resolved by considering the plain meaning of the words ( Richter v. Commonwealth Casualty Co., 93 Pa. Super. 28), the addition of a comma in this phrase would not result in the desired clarity. The exclusion is so worded as to give rise to several interpretations, with or without commas. The result is a virtually meaningless phrase and must therefore be construed in favor of the insured in order not to defeat, without plain necessity, the claim to indemnity which it was the insured's object to obtain. Armon v. Aetna Casualty Surety Co., 369 Pa. 465, 87 A.2d 302; Koser v. American Casualty Co. of Reading, 162 Pa. Super. 63, 56 A.2d 301. The burden was upon the defendant to establish that the plaintiff's accident was excluded by the policy. Richman v. Home Insurance Co. of N. Y., 172 Pa. Superior Cf. 383, 94 A.2d 164. To do so it was necessary to rely on the ambiguous exclusion clause, which fails to sustain the interpretation desired by defendant. It was therefore proper for the court below to exclude defendant's testimony in respect to visible marks on the deceased's body and to direct a verdict for plaintiff on the admitted facts.
Judgment affirmed.