•contained in the certificate of membership upon which this suit is founded, wherein it was stipulated that the defendant should not be liable for “injuries, fatal or otherwise, resulting directly or indi- ‘ rectly from, or in any wise contributed to, by * * * poison in any form or manner, or contact with poisonous substances.” It is conceded that carbolic acid is a poison, but plaintiff contends that the injuries resulting from the effects of the throwing of the carbolic acid were not caused by “poison in any form or manner, or contact with poisonous substances,” within the meaning of the membership certificate, claiming the word “poison” therein is used in its ordinary meaning, as a substance taken internally. It would seem that this position is assumed because of the opinion of the presiding justice in the case of Bacon v. Association, 44 Hun, 599 , and appears to be the sole basis.for this contention. A reference to the opinion discloses the fact that in that case (page 602) the insured stated in his application for insurance that he was aware that the benefits “will not extend * * * to death or disability caused wholly or in part * * * by taking of poison in any form or manner.” There the application was made part of the certificate, and the expression of opinion of the learned presiding justice was made in view of the •use of the word “taking.” The case was reversed upon appeal (
123 N. Y. 304 , 25 N. E. 399 ), but the opinion of the court of appeals does not touch upon the point here under consideration. There is a very •evident distinction between the use of the words “by taking of poison” and “by poison.” The expression “by taking of poison” may very well be held to mean the internal use of poison, but such cannot be considered the meaning of the words of the certificate in this case, except by a forced construction. This distinction is pointed out by Judge Gray in his opinion in the case of Paul v. Insurance Co.,
112 N. Y. 472 , 478, 20 N. E. 347 , 349, 3 L. R. A. 443 , 446, where' the words “inhaling of gas” were under consideration in connection with a clause in a policy relieving defendant from liability for injuries occasioned by the “inhaling of gas.” The court there held that those words applied only to a voluntary and intelligent action on the part of the insured. The death of the insured was occasioned by the ¿as being turned on in a room where insured was sleeping and breathing the air impregnated with the gas. Judge Gray said: “If the policy had said that it was not to extend to any death caused wholly or in part by gas, it would have expressed precisely what the appellant now says is meant by the present ■phrase, and there could have been no room for doubt.” Here the words of the certificate are “by poison” and not “by taking poison,” making the language of Judge Gray directly in point.
The further contention of plaintiff, that by the subsequent words “contact with poisonous substances” is meant and intended a voluntary and conscious action of plaintiff, is likewise without force. This argument is based upon the Paul Case, just cited, and that of Menneiley v. Assurance Corp., 148 N. Y. 596 , 43 N. E. 54 , 31 L. R. A. 686 , in both of which the decisions are predicated upon the use of the word “inhale” in connection with gas, and therefore can have no application here; for neither that word, nor any words of similar