The terms of an insurance policy should be so plain that "a wayfaring man, though a fool, need not err therein"; yet paragraph 17 of the policy sued on has been the subject of construction in numerous courts, and no two have ever agreed upon its meaning. Dustin v. Interstate Business Men's Accident Ass'n,37 S.D. 635, 159 N.W. 395; L.R.A. 1917B, 319; Aaberg v. Minnesota Commercial Men's Ass'n, 161 Minn. 384, 201 N.W. 626; Wahl et al. v. Inter-State Business Men's Accident Ass'n, 201 Iowa, 1355,207 N.W. 395, 50 A.L.R. 1374; Provident Life Accident Insurance Co. v. Rimmer, 157 Tenn. 597, 12 S.W.2d 365; Massachusetts Bonding Insurance Co. v. Santee (C.C.A.) 62 F.2d 724; Graham v. Business Men's Assurance Co. of America (C.C.A.) 43 F.2d 673; Oglesby v. Massachusetts Accident Co., 230 A.D. 361,244 N YS. 576; International Travelers' Ass'n v. Gunther (Tex.Com.App.) 280 S.W. 172; Id. (Tex.Civ.App.) 269 S.W. 507; Arneberg v. Continental Casualty Co., 178 Wis. 428, 190 N.W. 97, 29 A.L.R. 93.
The insurance company inserted this provision in its policies and the appellee had to accept it as written or not at all. Her premiums were paid and accepted by the appellant; and her right to indemnity became a question only after the eventuality insured against had occurred, which in this case would not happen to one in a thousand holding such policies. She is charged with knowing the existence and meaning of paragraph 17, though she may not have read the policy; or having read it (like courts who have construed it), failed to grasp its meaning, whatever it may be. It should be construed liberally in behalf of the insured; a cardinal rule of construction regarding insurance contracts, if susceptible of more than one meaning. *Page 470
But with these considerations operating in favor of the appellee, and with a sympathetic attitude toward her claims, I am unable to find in the language of paragraph 17 of the policy in suit any support for them.
We all agree that the meaning of "other insurance covering the same loss" as used in paragraph 17 is the key to the solution of the principal question to be answered.
There are but two possible meanings: "Other insurance" either includes any overlapping insurance, whether accident, health, or life; or else it has reference to insurance indemnifying against all of the eventualities insured against by appellant. There is no middle ground.
At the time the policy was issued there was no "loss," and "other insurance covering the same loss" could have no reference to a loss that does not occur. It required death, accident, or sickness to bring "loss" into the transaction. It looks to the future; applies prospectively; that is, if and when a liability arises under the policy sued on the appellee is carrying with another company, etc., other insurance covering the same loss (that is, the loss for which indemnity is claimed); written notice of which had not been given appellant, then the proration provision would apply. This is the only meaning I am able to find in the language used.
If the words "without giving written notice" had been "withouthaving given written notice," there could not be a shadow of a doubt. But the subsequent words "indemnity promised" could only have reference to an indemnity promised in case of a presupposed eventuality (loss) that would call for such indemnity; and the words "amount of like indemnity" could only have reference to indemnity promised in case of a like eventuality. Only if we can hold that the word "loss" means the whole of the eventualities, the happening of any one of which would entitle the holder to indemnity (and no such meaning can be conjured out of it by me, though I strongly wish for it), could there be found support for appellee's claim. This would mean that the Mutual policies must have been effectively identical in the health and accident features with the policy in suit for the proration provision to apply, and by no stretch of the will can such result be reached by me with any support of reason. Such provisions are traps for the unwary and should be eliminated from policies of insurance by statute as in Missouri. State ex rel. Business Men's Assurance Co. v. Allen et al., 302 Mo. 525, 259 S.W. 77. I reluctantly concur in the majority opinion.