
    Mary Menneiley, Pl’ff, v. The Employers’ Liability Assurance Corporation, Limited, Def’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 20, 1893.)
    
    Insurance (accident)—Construction oe policy.
    A policy of accident insurance provided that it did not insure against death or disablement “arising from anything accidentally taken, adminis tered or inhaled, contact of poisonous substances, inhaling gas, or any surgical operation, etc.” The insured died from accidentally inhaling illuminating gas, which accidentally escaped into the room where he was-sleeping in an hotel. Held, that the case came within the first portion of" the exception, “ anything accidentally inhaled,” and that defendant, therefore, was not liable.
    Motion by the plaintiff for judgment on a verdict directed by the court at the Monroe circuit (January, 1893,) subject to the-opinion of the general term on a case to be made by the plaintiff,.
    
      Wm. N. Cogswell, for pl’ff; W. A. Sutherland, for def’t.
   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. Travelers' Ins. Co., 112 N. Y., 472; 21 St. Rep., 624. 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 rélied upon, if expressly framed to avoid the construction put upon that in the case of Paid, 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.

Lewis, Maoombeb, and Haight, JJ., concur.  