88 FEDERAL REPORTER,
there remained a balance due and paid within the year sufficient tocover the usurious interest previously paid, such balance so paid,.,or 80 much as will equal the previous payment of usury, might be recovered, and such a claim would not be barred by the statute. But as this would be a defense of payment,. it should bave been made to the original action, as a plea of payment is bad after judgment. Greenabaum v. Elliott, 60 Mo. 25-29.. But, according to the Kentucky statute, if the defense of payment was not made timely. the defendant may, nevertheless, institute suit to recover back the amount of usurious interest paid. When such suit should be brought, the defendant therein could interpose the plea of the statute of limitations. It is not deemed essential to pass upon the question raised in argument by counsel for plaintiff as to whether, under the Kentuck,'statute entitling the borrower to recover back the amount of US1ll'.'paid by him, the remedy could be invoked by the surety, further than to say that no recovery could be had by such surety unm after ]10 had paid off the judgment which contained usurious interest. It may be conceded that it would have been a matter of'defense, which the surety could have availed himself of in the original action, to have set off the amount of usury paid in diminution of the amount . of the judgment against them. It results that the motion to strike out the paragraph of the answer in question is sustained.
LOWENSTEIN v. FIDELITY & CASUALTY CO. OF NEW YORK.
(Circuit Court, W. D. Missouri, W. D.
No. 2,223. 1.
June 13, 1898.)
ACCIDEl\'"r INSURANCE-CONSTRUCTION OIl' POLICy-INVOLUNTARY ASPHYXIATION.
A clause declaring that the Insurance does not cover Injuries or death "resulting from polson or. anything accidentally or otherwise taken, administered, absorbed, or inhaled," does not exempt the insUrer from liability for death caused by Involuntary and unconscious Inhalation of illuminating gas, accidentally taken while asleep.
The word "Inhaled," as used In the above provision of the policy, means a voluntary and IntellIgent act by the Insured, and not an involuntary and llnc(msclous Inhalation. the act of Inhaling, but are used In connection wlththe 'preceding word. "accldentally," and mean an Injury of a kindred character.
. 'The words "or otherwIse," as used in the above provision, do n&t qualify
" SAME:. ,
PoIlcies of insurance are to be liberally. construed, lind the conditions "therein are to be construed strictly against those for whose benefit they "are reserved. And any doubt or'amblgulty as to the meaning of any clause In a policy should resolved in. fa vor ot the Insured, and against the blBurer.
I. SAME:. . An insurance company, continuing to Issue, without change, pollclel eon'., talnlng claUseswliich have beencorlstruoo unfavorably to its contentioD
LOWENSTEIN V. FIDJi;LITY " CASUALTY CO.
by the highest court ot the state in which the company Is Incorpo,ra,tll(l, may well be considered as isauing them with that construction placed Opon them.
I. J. Ringolsky, forplainti1l'. Warner, Dean, Gibson & McLeod and D'Laguer Berier, for de· fendant. PHILIPS, District Judge. This is an action brought to recover on an accident policy issued by the defendant, a New York cor· poration, to Emanuel Lowenstein, payable to his wife, the plaintiff, in case of death. On a trial to a jury, the jury have found that the assured died from asphyxiation caused by the involuntary and unconscious inhalation of illuminating gas, accidentally taken, in his bedroom, in the city of New York, while the assured was asleep. The defendant has filed a motion in arrest of judgment, which raises the question whether or not the defendant is exempt from liability for such accident by reason of the following provision of the policy: "This insurance does not cover injuries, fatal or other,wise, resulting from poison or anything accidentally or otberwise taken, administered, absorbed, or inhaled." The court of appeals of New York, from which state tbis defendant received its cbarter, in Paul v. Insurance Co., 112 N. Y. 472, 20 N. E.347, held that a provision in an accident insurance policy tbat tbe insurance sbould not extend to a death caused by tbe taking of poison or inhaling of gas did not apply to the instance of an involuntary and unconscious inhalation. This conclusion is reasoned out by consideration of tbe whole context, indicating tbat the term "inhaling," as employed in tbe policy, could only be understood to mean "a voluntary and intelligent act by the insured, and not an involuntary and unconscious act." The court further said:
"Read In that sense, and In the light of the context, these words must be interpreted as having reference to medical or surgical treatment,-in Which, ex vi termini, would be Included the dentist's work,-or to a suic,idal purpose. To Inhale gas requires an act of volition on the person's part before the danger is Incurred. Poison may be taken by mistake, or poisonous substances may be inadvertently touched; but, whatever the motive of the insured, his acts preceded either fact. · · · It the exception Is to cover all cases where death is caused by the presence of gas, there would be no reason tor using the word 'inhaled.''' .
This decision was made in 1889. This question, in its practical effect, came before Judge Blodgett, in the United States circuit court for tbe Nortbern district of Illi· nois, in 1891 (Richards-on v. Insurance Co., 46 Fed. 843), in which the ruling of Paul v. Insurance Co., supra, was disapproved; the court adhering to the literal significance of the word "inhale," as implying only the physical act of drawing or breathing into tbe lungs, which would occur whether the person was conscious or unconscious of the operation. This conclusion the court sougbt to fortify by the suggestion that the clause in question was doubtless adopted by the insurance company because of the practical difficulty, in most cases of death resulting from the inhalation of gas, to determine whether the death was occasioned by s,uicidal intent,
it. ocoorred the. suggestion respecting the purpose of the insurance company, consideration will herein· after be given. The case of Early v. Insurance Co. (Mich.) 71 N.W. 500, cited by defendant's counsel, is hardly germane to the question under consideration. The policy exempted the insurance company from lia· bility for injuries or d.eath"by poison." Death ensued from the In· sured taking, by mistake, aqua ammonia, a poisonous drug. The court held that the expression "death by poison" covered· an accidental death caused by poison, nnderwhatever circumstances or con· ditions taken, and in that respect is differentiated from the New York cases, which contained the words "by the taking of poison." And the court calls attention to the language of the court in the Paul Case, that:
"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 it meant by the present phrase, and there could have been no room for doubt or mistake."
So it was properly held by the Michigan court that "death by poison" any and every manner of poison, whether intentionally or unin'tentionaUy, consciously or unconsciously, taken. this question c,ame the court of appeals of New York in v. Accident Ass'n, 123 N. Y. 304, 25 N. E. 399, in which the ruling in the Paul Case was reaffirmed; the court observing: . ,. "
"Upon the question decided, the case is conclusive, and we have no disposi' tion to alter our views as expressed ther:eln."
The supreme court of lllinois passed upon a kindred' question in Insurance Co. v. Dunlap, 160 Ill. 642,43 N. E. 165, in which the court held, that drinking carbolic acid by mistake for peppermint was not within a clause of an accident insurance exetnpting the liability for death from taking poison, ali! such words mean- '
"The voluntary, Intentional taking of polson, and do not Include cases of accidental poison by mistalre, but do Include Injuries or death from voluntarily taking poison . without any suicidal Intent."
The court referred to and approved the ruling of the New York court in the Pa ul Case. ' The questi'Oli· came before the supreme court of Pennsylvania in Pickett v. Insurance Co., '144 Pa. St. 79, 22 Atl. 871, on a policy which exempted the company'from liability for death resulting from the inhalation of gas. The insured descended into a well to make repairs-on a pump, and died from asphyxia caused by poisonous gas at the bottom of the well. The court held that the inhalationof gascofitemplated a v&luntary, intelligent act, and not an involuntary and unconscious act; approving the ruling in the Paul Case. The accident insurance companies were dissatisfied with the ruling in the Paul Case, and as late as March, 1896, the question was resubmitted to the New York court of appeals in Menneiley v.
LOWENSTEIN V. FIDELITY &: CASUALTY CO.
Assurance Corp. 148 N. Y. 596, 43 N. E. 54. The ruling in the Paul Case was reaffirmed, with additional reasons in reply to the criticisms of counsel. Inter alia, the court said:
"The provision in the policy clearly implies voluntary action on the part of the insured or some other person. The insured must take or inhale, or another must administer. The manifest purpose of the provision is to exempt the Insurer from liability where the insured has voluntarily and consciously, but accidentally, taken or Inhaled, or something has been voluntarily administered which was injurious or destructive of life. We think that the particular accidents intended to be excepted by that provision are the accidental taking or inhaling into the system of some injurious or destructive agency under the mistaken belief that It was beneficial, or at least harmless. This is made more apparent by that portion of the provision which relates to something 'administered,' as It cannot be reasonably construed as referring to a thing involuntarily and unconsciously administered. Indeed, it is quite difficult to understand how a thing could be involuntarily and unconsciously administered. Coupled together as these provisions are, the same rule of construction must be applied to that portion which relates to something accidentally il»haled as Is applied to the portion which relates to a substance accidentally taken or accidentally administered. All the cases thus provided for plainly Involve voluntary and conscious action on the part of the insured or some other person. The leading and controlling Idea In this provision Is the performance of a voluntary act which accidentally causes the death or Injnry of the insured. That a proper construction of the policy requires us to hold that it applies only to cases where something has been voluntarily and intentionally, although mistakenly, taken, there can, we think, be but little doubt. · · * The argument that the provision as to Inhaling gas has been given the same effect as Is now given to the other and more general one, and that such could not have been their purpose, has little force. The inhaling of gas baving been specially.prqvided for wben taken for surgical and like purposes, it is only when It. is .inhaled for some other purpose, or under other circumstances. that the general provision applies. The special provision is applicable when gas Is Inhaled for surgical and like purposes. The general provision applies when It is inhaled for <lither purposes."
At the May term, 1896, of the supreme court of Illinois, this question was taken to that court by this defendant, the Fidelity & Casualty Company of New York, in the Waterman Case, 161 TIL 632, 4_4 N. E. 283, under a policy containing the same provisions. in the same language, as the one under consideration; and the supreme court reaffirmed the ruling in Insurance Co. v. Dunlap, Bacon v. Accident Ass'n, Pickett v. Insurance Co., and the New York cases, supra. There, as in the case at bar, counsel for the insurance company placed much stress upon the word "otherwise," employed in the provision that "this insurance does not cover injuries resulting from poison or anything accidentally or otherwise taken, administered, absorbed, or inhaled." It was there contended that these words included every possible way by which gas could be taken into the human system so as to cause death. The court said:
"Read In the llght of the decisions, the words now In question do not mean otherwise than· It they explicitly read, 'poison or anything accidentally or otherwise, conscIously and by an act of volition, drawn Into the system by Inspiration.' "
I may add that the addition of the words "or otherwise" cannot by any technical or natural construction qualify the act of inha]·
mg. "'Or otherwise,' .in ··law, used as a. phrase following an enumeration of Pllrti.cular!!,.is commonly interpreted in a restricted sense, as referring to such other are kindred to the clause before mentioned." Cent. Law Dict. It is to be read in connection with the preceding word, "accidental," and means an injury of a kindred character, aI}.d would cover an intentional taking as well as an accidental taking. The court of appeals of Kentucky has recently followed the Paul Case, in Omberg v. Association, 40 S. W. 209. It is to be conceded to the learned counsel for, defendant that, looking alone to the etymology of the word "inhale," and .to its ordinary, dictionary definition, it means to draw in, as air into the lungs, and. to inspire, as to inhale air,-a of life that goes on whether sleeping or waking; .and in such sense it may be said that a person, when sleeping, breathes the air without any volition <'I' intelligent action. But, as was said by Welsford:
"Etymology has been so unsuccessful In establishing clear and definite principles, or so unfortunate In their application, that many persons regard It Is bearing the same relation to grammar as astrology does to astronomy, alchemy to chemistry, or perpetual motion to mechanics."
As applied to the practical.bus:iness affairs of life, these primary meanings. of words do not always afford safe rules of interpretation and application. This is especially so in the construction of restrictive provisions in insurance contracts, placed·' there by the insurer. The courts read them in connection with' all the other provisions of the policy, in pari'inateria, and give them aconstruction in harmony with other kindred terms, Sp as to afford the largest measure of protection, according to the understanding of the terms employed, to the assured. And this leads to the consideration of the history of the controversy over the meaning of like provisions in insurance contracts, and the conduct of this defendant in continuing the employment of this phraseology in its policy, as affecting the conclusioIl which I have' reached. In the Paul Case the court used this significant language:
"If the policy had said that It was not tQetrtend to any death caused wbolly In part by gas, It would have expressed precisely what the appellant now says It meant by the present phrase, and there could have been no room for doubt or mistake. Policies of Insurance are to be liberally construed, :and. as In all contracts, conditions are to be construed strictly against those for 'Whose benefit they are reserved. It is an a.ccepted cllnon of interpretation that, If there Is any uncertainty as t() whether given words were used In all enlarged or restr.tcted sense, the construction should be adopted which Is the most beneficlal'to the covenantee." . .
As very pertinently observed by the supreme court of Illinois in Oasualty Co. v. Waterman, 161 Ill. 636, 44 N. E. 284:
a New York corPoration, and made and d;ated its contract in the city of New York; and this was 'done several years after the decision In the Paul eliSe by the court of last resort In that state. It must be presumed that It was then fully advised of that decision, and knew when it entered Into the contract now In Bult what Its lIabllities were, and the agreement that It made." .
LOWENSTEIN V. FIDELITY &< CASUALTY CO.
Notwithstanding the <lecisive reiteration by the court of appeals of New York of its construction of the term "inhaling," made as late as March, 1896, and notwithstanding the ruling of the supreme rourt of Illinois against this company in the Waterman Case, it has continued to issue its policies, and made the renewal in the case at bar, according to the verdict of the jury, as late as January, 1897, with the same provisions, in the same words as theretofore employed by it. Under such circumstances, any taker of its policy would have been justified in taking it with the understanding that this New York corporation was issuing its policy witb the construction placed upon it by the highest court of the state granting its charter. If it was the purpose of the company as suggested by its counsel in argument at the bar, in inserting the word "otherwise," to avoid the effect of the ruling in the Paul Case, it is a sufficient answer to say that the court in that case suggested to the company the apt and direct words which would accomplish that end, whereas, if it employed the words "or otherwise" for such purpose, it was a concealed purpose. not apparent to the ordinary mind, and not at all calculated to carry to the insured, like Lowenstein, even a suggestion that it was intended to say by the policy that the company would not answer for liability resulting from inhaling gas, or other poisonous substances. whether taken voluntarily and consciously, or involuntarily and unconsciously. In Manufacturing Co. v. Jones, 14 C. C. A. 30, 66 Fed. 124, a rule was advanced not inapplicable to this case. The company there had for years been sending its agents throughout the country, making contracts with farmers for the erection of butter and cheese factories. These contracts were drawn in such form as to make it debatable whether or not the subscribers to them became jointly and severally liable for the whole contract price of the factory, or to the extent only of the sum set opposite their names in the form of subscribers to stock. Some courts decided that snch subseribers became individually liable for the whole contract price. while other courts decided that they became liable only for the sum set oPpol!lite their names as stockholders. Finally one of these cases reached the court of appeals, in the case just cited, and the court used this language:
"These conflicting decisions were presumably well known to the plaintiff company, but were unknown to the defendants. Under these circumstances. It was the duty of the plaintiff to alter the form of lts contract then In use so as to avoid the question whether it imposed a joint or a several liability. having done which had theretofore given rise to the conflictIng decisions. so, the plaintiff cannot complain If the courts adopt the construction of the contract which II most favorable to the defendants."
The language of Judge Taft in Indemnity Co. v. Dorgan, 7 C. Q. A. 592, 58 Fed. 956, may be aptly applied as a conclusion to this disellssion:
"It Is a well-settled rule In the construction of Insurance policies of this character, which the insured accepts for the purpose of covering all accidents, to all the language used to limit the .1Iablllty of the company strictly agalnlt the company. Policies are drawn by the legal advisers of the company, who study with care the decisions '6f .the courts, and, with those .In mind; attempt to limit as hearly as possible the i scope of the inliluraBce. It
88 FEDERAL REPORTER.
Is only a fair rule, therefore, which courts have adopted, to resolve any doubt or ambiguity In favor of the Insured, and against the Insurer:'
It .is in this view of the relation sustained by this company to the state of New York, to which it owes its corporate life, that I feel constrained to overrule the motion in arrest of
UNITED STATES v. RILEY (three cases). (District Court, S. D. New York.
CUSTOMS DUTIES - SUMMONS FOR FORFEITURE ApPEARANCE-LACHES-WAIVER.
February 5, 1898.)
N ONINDORSEMENT GENERAL
A summons for the "forfeiture" of the value of Importations not Indorsed with a reference to the statute, may be set aside; ,but not after a general appearance with knowledge of th,e nature of the action, and after several yeal's' delay and the expiration by limitation of the government's time to bring a new action.
These were actions brought by the United States, against, William H. Riley to enforce a forfeiture of the value of various alleged fraud'ulent importations of merchandise at the port of New York,. and motions were made to set aside the summons in each case. Wallace MacFarlane, U. S. Atty., and .James R. Ely, Asst. U. S. Atty. Kellogg, Rose & Smith, for defendant. BROWN, District Judge. A motion has been made in defendant's hehalf in each of the above three causes to set aside the service of the summons, on the ground that the copy of the. summons served upon the defendant, had no indorsement upon it indicating the statute or section upon which the claim for forfeiture was based, as required by sections 1897, 1962 and 1963 of the New York Code of Civil Procedure. The summonses without any complaint were personally served upon the defendant on January 5, February 7 and April 5, 1894, respectively. These summonses did not state the nature of the cause of action, but required the defendant to answer the complaint within 20 days, with a notice that in case of failure to answer or appear, judgment would be taken by default for the relief demanded in the complaint. Attached to the copy summons in action No.2 was a notice that upon default judgment would be taken for 19. different sums specified with interest on said items frotn various specified dates in January, February, March, June and July, 1891, amounting in, the aggregate to $24,995.55, besides interest. On the copy S\lmIDons serv in action No.3 a notice was indorsed that upon default judgment d would be taken for the sum of $48,515.63 with intel'est. On the copy summons served in action No.4 was a similar notice that upon default judgment would be taken for the sum of $8,122.42 with interest. In each of these cases the defendant within 20 days 9,fter the service -of the summons, put in a general appearance by his attorneys who served written notice thereof with a demand of a copy coniplaint _n. the usual coursein accordance with the state Practice.T1J.1:' plaintiff's ,attorneys thereafter obta,ined from time to time E'xtenldons