
    Mary Moest, Plaintiff, v. The Continental Casualty Co., Defendant.
    (Supreme Court, Erie Equity Term,
    June, 1907.)
    Insurance: Construction and operation of contract — In general — Construction in favor of assured; Actions on policies — Provisions in policy requiring action within specified time.
    A provision of an accident insurance policy that no action to recover any benefit thereunder other than weekly benefits shall be brought unless within nine months of the date of the accidental injury covers all benefits; and an action to recover a death benefit, begun more than nine months after the death of the insured, is barred by said provision.
    A provision in the policy that it shall not be construed to cover any person over the age of sixty years will be construed as relating to the date of issuing the policy.
    
      Action on accident insurance policy to recover death benefit. Tried by court without a jury by agreement of parties.
    Ford White, for plaintiff.
    W. S. Jenkins, for defendant
   Pound, J.

Defendant issued a certificate of insurance by which it undertook to insure Henry Moest, husband of plaintiff, against personal injury for one year from February 4, 1905; in case death resulted from such injuries, defendant agreed to pay plaintiff $5,000. The certificate provided that “Ho suit or proceeding at law or in equity shall be brought against this company for weekly benefits unless the same be brought within six months of the termination of total disability, or, in case the same shall last more than two hundred weeks, within thirty months of the commencement thereof; nor for any other benefit unless within nine months of the date of the accidental injury "

Moest received an injury July 3, 1905, which resulted in his death July 8, 1905. This action was begun on October 1, 1906, more than nine months after the death of insured.

It is claimed by the plaintiff that the above provision of the certificate does not relate to losses by death but only to injuries not resulting in death.

The words “accidental injury” in a policy of this kind were construed in Cooper v. United States M. B. Assn., 132 N. Y. 334, to mean, so far as the plaintiff is concerned, the death of the husband as the result of the accident rather than the date of the accident itself. In that case it was held that plaintiff’s action, brought more than the period specified after the accident hut within the period specified of the husband’s death, could he maintained. The provision of the certificate above quoted should be so construed as to give it effect, if possible, as it was clearly intended to cover all benefits, death benefits included. I think that it applies here, and is a bar to plaintiff’s action.

The policy contained a proviso in fine print toward the end that it “ shall not he construed or held to cover any person under the age of eighteen or over the age of sixty years.”

’ On February 2, 1905, when the policy was extended for one year, insured was less than sixty years of age, having been born on April 16, 1845; but at the time of his death, and also at the time of the accident, he was upwards of sixty years of age, and defendant claims that it is not liable on said policy by reason of such proviso. As the words above quoted are ambiguous and susceptible equally of the construction which relates the words sixty years ” to the date of issuing the policy and to the construction which relates the words to the date of the accident, I shall follow the rule which requires such contracts to be construed most strictly against the company and hold that plaintiff would be entitled to recover were it not for the lapse of time. The company had notice at the time of writing the policy that insured was fifty-nine years old, yet it insured him for a full year and took from him a full year’s premium. If it meant to take his money without performance on its part in case of death within the year, it should have chosen more accurate language.

Judgment accordingly.  