HOLLOWAY, Circuit Judge.
The plaintiff Webb brought this action against the defendant insurance company, Allstate, to recover an accidental death benefit provided in a life insurance policy covering his wife.
Mrs. Webb died on January 30, 1974, in St. Anthony Hospital in Oklahoma City. On the basis of stipulated exhibits including a death certificate, an amendment thereto, and similar reports and hospital records, the company moved for summary judgment, relying on statements therein that the immediate cause of death was pneumonia which was due to "Drug Overdose" (R. 80, 81). Among other things the records show an "accidental drug overdose (aspirin)" and that Mrs. Webb was having headaches and anxiety and was taking aspirin (R. 83). The company's position is that the death was excluded from the accidental death benefit by the exclusion for death from "overdose of drugs", as appearing in the following language of the policy (R. 64):
The plaintiff submitted opposing affidavits. His position essentially is that the death resulted from the taking of several
After consideration of the motion, the stipulated exhibits, the response and the opposing affidavits, the trial court granted summary judgment. The order reviewed thoroughly the contract provisions and the papers submitted by the parties. The order stated that "[t]he death was accidental and it did not result from a sensitivity to drugs." (R. 120). It concluded that the contention that aspirin was not considered a drug according to plain and ordinary meaning was without merit; that the term "overdose" as ordinarily understood included the taking of multiple doses of aspirin over a period of days, according to plain, ordinary and popular meaning; that the term "overdose of drugs" was not ambiguous and included aspirin as a drug and multiple doses over a period of time. Summary judgment was entered and this appeal followed.
Among other things, plaintiff argues that the trial court erred: (1) in concluding that the phrase "overdose of drugs" is not ambiguous; (2) in determining that there were no genuine issues as to material facts; and (3) in not giving plaintiff the benefit of all reasonable inferences that could possibly be drawn from the evidence. The issues require analysis of the summary judgment papers in our record.
As stated, the death certificate indicated the immediate cause of death was pneumonia, "due to or as a consequence of Drug Overdose" (R. 80-81). The hospital records show that Mrs. Webb had been admitted first to Bethany General Hospital on January 26, 1974, with complaint of hyperventilation and confusion. According to her husband she had been taking aspirin and nervine in large amounts (R. 68). The admitting laboratory report included a statement that the blood salicylate level was 70% (R. 68). On January 27 she developed acute pulmonary edema (R. 68). Dr. Matter was consulted and felt she should be transferred to St. Anthony Hospital for dialysis. She was admitted at St. Anthony on January 28 (R. 68).
The hospital records there reflect that she was responsive to painful stimuli but was not conscious (R. 68-69). The impression noted on January 28 was: (1) salicylate-bromide overdose; (2) bilateral lobar pneumonia; (3) acute hypoxia. She was deeply comatose early on the morning of January 29. Later that morning no identifiable brain activity was noted on an E.E.G. (R. 73). On January 30 a further E.E.G. was made and no evidence of cortical activity could be seen with maximum amplification. The findings were those of a flat record in keeping with cerebral death (R. 78). A report of investigation by a medical examiner following an inquest states that her death occurred at 2:45 p. m. on January 30.
As stated, in opposing the company's theory of death from "overdose of drugs" and a summary judgment on this basis, the plaintiff submitted the affidavits of two attending physicians and the medical examiner who conducted an inquest. The affidavit of one attending physician, Dr. Bumpus, stated in part (R. 103):
The affidavit of the second attending physician, Dr. Matter, stated similar views
Terms of an insurance policy must be considered not in a technical but in a popular sense, and must be construed according to their plain, ordinary and accepted sense in the common speech of men, unless it affirmatively appears from the policy that a different meaning was intended. Reliance Ins. Co. v. Jones, 296 F.2d 71, 73 (10th Cir.). We note a popular definition of "overdose" as "too great a dose." Webster's Seventh New Collegiate Dictionary (1967) p. 601. A "dose" is there first defined as "1 a: the measured quantity of a therapeutic agent to be taken at one time" Id. at 249.
In the circumstances of this controversy we cannot agree that aspirin may be declared a drug as matter of law,
Where different ultimate inferences may properly be drawn, the case is not one for summary judgment. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176; American Fidelity & Casualty Co. v. London & Edinburgh Ins. Co., 354 F.2d 214, 216 (4th Cir.). The court must examine the summary judgment papers
While we express no view on the merits, we feel this is not a case where the moving party has demonstrated his entitlement to judgment beyond a reasonable doubt. See Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 516 F.2d 33, 36 (10th Cir.); Hughes v. American Jawa, Ltd., 529 F.2d 21, 25 (8th Cir.). We feel that inferences favorable to plaintiff could be deduced from the facts and circumstances and thus the summary disposition was inappropriate. See Mustang Fuel Corp. v. Youngstown Sheet & Tube, supra at 36. Accordingly, we conclude that the summary judgment should be vacated and the case remanded for further proceedings.
Dorland's Illustrated Medical Dictionary (25th Ed. 1974, p. 472), defines dose as: