
    (72 Hun, 477.)
    MENNEILEY v. EMPLOYERS’ LIABILITY ASSUR. CORP., Limited.
    (Supreme Court, General Term, Fifth Department.
    October 20, 1893.)
    Accident Insurance—Death bt Inhaling Gas.
    Death by inhaling illuminating gas, which accidentally escaped into an hotel room where the insured was sleeping, is within an exception of an accident policy that it “does not insure * * * against death or disablement arising from anything accidentally taken, administered, or inhaled, contact of poisonous substances, inhaling gas, or any surgical operation.” Paul v. Insurance Go., 20 N. E. Rep. 347, 112 N. Y. 472, distinguished.
    Appeal from circuit court, Monroe county.
    Action by Mary Menneiley against the Employers’ Liability Assurance Corporation, Limited. Plaintiff moves for judgment on a verdict directed by the court at circuit subject to the opinion of thi general term on a case to be made by her.
    Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.
    Wm. 37. Cogswell, for plaintiff.
    W. A. Sutherland, for defendant.
   DWIGHT, P. J.

The action was on a policy or contract of insurance payable to the plaintiff, which insured her husband, Samuel D. W. Menneiley, “against personal injuries caused by accident within the meaning of this policy.” The insured died from accidentally inhaling illuminating gas, which accidentally escaped into the room where he was sleeping in an hotel. The only question in the case is whether that accident was “within the meaning of this policy.” The policy contained the following, among other, “agreements and conditions,” upon which it was issued: “This policy does not insure * * * against death or disablement arising from anything accidentally taken, administered, or inhaled, contact of poisonous substances, inhaling gas, or any surgical operation,” etc. It has been held by the court of last resort in this state that by the words “inhaling gas,” in a similar exception contained in the contract of another insurer against accidents, “the company can only be understood to mean a voluntary or intelligent act by the insured, and not an involuntary and unconscious act.” Paul v. Insurance Co., 112 N. Y. 472, 20 N. E. Rep. 347. So that, if the exception of death or disablement by “inhaling gas” was the one relied upon by the defendant here, the authority cited would be conclusive against its contention. But such is not the case. The exception here relied upon, which was not in the policy in the Case of Paul, expressly describes an act not voluntary and intelligent, but, on the contrary, accidental. The death or disablement excepted is one “arising from anything accidentally inhaled,” and here was the death of the insured arising from illuminating gas accidentally inhaled. It seems difficult to elaborate or prolong an argument upon this statement. Here is no room for interpretation. The words employed interpret themselves, and unquestionably apply to the facts presented by the stipulation of the parties. The exception here relied upon, if expressly framed to avoid the construction put upon that in the Case of Paul, supra, could not more successfully have accomplished the purpose. It would be a contradiction in terms to apply the words “accidentally inhaled” to the voluntary and intelligent act of inhaling an anaesthetic in aid of a surgical operation, which the court say was apparently the reference in that case. The facts in this case bring it unavoidably within the exception, and, consequently, take it out of the provision of the policy in suit. The motion for judgment upon the verdict must be denied, with costs, and, upon the facts agreed upon, judgment ordered for the defendant, dismissing the complaint. So ordered. All concur.  