(dissenting).
The pertinent language of the provision said to relieve the insurer of liability reads: “The Accident insurance under this policy covers all bodily injuries, fatal or otherwise, subject to the provisions, conditions and limitations specified in this policy, except: * * * (5) those caused wholly or partly, or the results of which are contributed to, by * * * hernia * * * or by any disease, or medical or surgical treatment therefor, such hernia * * * or medical or surgical treatment to be construed as sickness.”
Nobody, of course, claims that the hernia caused the insured’s death. The contention of the insurance company, predicated on the testimony of several physicians, was that the operation caused it. These experts gave it as their opinion that the embolism of which the insured died was postoperative in character, that is to say, it was the result of a clot in the blood stream developing out of the operation itself. But the trial court, as we pointed out in the companion case, New York Life Ins. Co. v. Wilson, 9 Cir., 178 F.2d 534, rejected this testimony and accepted instead the medical opinion of the plaintiff’s witnesses that the embolus was not connected with the surgery.1 Accordingly, the hernia and the surgical treatment for its correction are both ruled out as causes of death.
There remains only “medical treatment” for the hernia as a possible culprit to absolve the insurer of liability. The trial court found that the opiates and sedatives were “administered as medical treatment,” and on that basis alone thought the insurer not liable. It did not find that the drugs were administered as medical treatment for the hernia. Assuming, however, that such was necessarily what the court meant, that being the language of the exception, I am not able to discover in the record any evidence to support such a finding. One does not, I think, ordinarily assimilate the administration of sedatives or opiates in these circumstances with medical treatment for the cure or correction of a bodily infirmity such as hernia; and it is the latter thought only that a reading of the excluding clause suggests to the lay mind. The difficulty here is that the language of the exceptive provision must necessarily be given broad scope — stretched, so to speak, beyond its ordinary sense — if it is to be made to reach this particular aspect of the case, whereas observance of the governing state decisions requires that exceptive provisions be narrowly construed against the insurer. My brothers have paid mere lip service to this well-recognized decisional rule, while failing entirely to apply it.
The indemnities provided by this insurance policy are by no mean’s limited to the accidental loss of life. They cover a wide range of injuries and disabilities short of those which are fatal. Income benefits are provided for total and partial loss of time. There are provisions for additional income during hospital confinement, and for surgical attendance benefits. And the policy contains a schedule covering payments to be made by the company for t'he cost of various operations. If this suit had been one to recover indemnity for loss of time, or for hospitalization, or surgery or medical attendance benefits, the exceptive pro*92visions in question might well have relevancy and actually fit the case. But once an attempt is made to apply the exceptions to the actual facts of the suit, as found by the court, the language employed assumes a degree of vagueness and ambiguity that baffles the understanding. Ambiguities of this nature are universally resolved against the insurer as being the party solely responsible for them.
The judgment in my opinion should be reversed.
. The specific finding was that the insured “did not suffer any shock and did not die as a result of said hernia operation.”