Cforn^U Ham i>irljiinl 2Iibratg Cornell University Library KF1187.C81 1917 Accidental means; a brief on tlie insuring 3 1924 019 247 083 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019247083 ACCIDENTAL MEANS A BRIEF ON THE INSURING CLAUSE OF PERSONAL ACCIDENT POLICIES By MARTIN P. CORNELIUS General Attorney, Continental Casualty Company Revised and Brought Down to Date December, 1916 Price, $3,12 Postpaid C. C. HINE'S SONS COMPANY : PUBLISHER 100 William Street, New York Copyright, 1917 C. C. HiNE's Sons Company PREFACE This brief was originally prepared to be used as a working tool by its author and his associates. The first edition, which was printed in 1913, was a limited one and was not placed on sale. Complimentary copies were sent to a few accident com- panies. During the past three years many requests for the brief have been received. In an attempt to comply with these requests the first edition was soon exhausted. It has been assumed that the fact that these requests have continued to multiply indicates that the brief is of some value not only to the law and claim departments of the various accident com- panies, but also to those lawyers who have occasion to specialize in that branch of insurance law with which the brief deals. Since the first edition was printed about seventy deci- sions, involving questions which are discussed in the brief, have been handed down by the courts. A discussion of these new decisions is included in this edition. In the preparation of the brief the author has confined himself to a consideration of the reported cases only in so far as they bear upon the construction and interpretation of the insuring clause of an accident policy. The many exceptions to the insuring clause, such as those pertaining to voluntary exposure, intoxication, violating the law, etc., have not been considered. Practically all of the cases cited discuss propo- sitions of accident insurance law other than those included in this brief and in many of them the questions here involved are only incidentally considered All questions other than those pertaining to the interpretation of the insuring clause have been ignored. The author, in common with other insurance lawyers, has long realized that there is no work on accident insurance which deals exhaustively with the questions arising in connection with the determination of the precise liability of accident com- panies under the insuring clause of their policies. Practically all of the reported decisions in the United States bearing upon these questions have been discussed and classified in this brief. The attached table of cases, arranged alphabetically, indicates the page or pages of the brief on which each case has been cited or discussed. If it is desired to determine the particular holding of any case, in so far as the construction of the insuring clause is concerned, it is only necessary to refer to the table of cases. Death is brought about in an infinite number of ways. The insuring clause of an accident policy attempts in a few lines to limit liability to a fraction of that infinite number. It is, therefore, absolutely indispensable that this insuring clause be drawn without ambiguity. It is further essential, in de- ciding the multitude of border line cases, to first determine definitely the real meaning of the insuring clause and the gen- eral principles by which its interpretation must be governed, and then to reason very closely in order to correctly apply these principles. Accident policies have, from the very nature of things, been drawn in many different ways. For this reason and because of the limited character of the hazard insured against and the diflSculty of stating that hazard in general terms, it is not sur- prising that there is much confusion and misunderstanding as to the law. The business of accident insurance is of comparatively recent origin and the litigation of today is making the law by which the companies are to be governed, perhaps, for cen- turies. It is therefore very desirable from the standpoint of the companies, that the principles of law by which they are to be governed be fixed by the reported decisions uniformly and definitely. If this brief shall assist in any measure in bringing about this end, the author will feel that he has been more than repaid for the labor entailed by its preparation. M. P. C. Chicago, November 15, 1916. TABLE OF CASES CITED Pages cited. Accident Ins. Co. of No. Amer. v. Bennett (Tenn.) 42 Accident Ins. Co. v. Crandall (U. S.) 37 Mtaa Life Ins. Co. v. Bethel (Ky.) 86, 102, 116 /Etna Life Ins. Co. v. Dorney (Ohio) 86 /Etna Life Ins. Co. v. Fitzgerald (Ind.) 26 .Etna Life Ins. Co. v. Griffin (Tex.) 105, 112 JEtna Life Ins. Co. v. Hicks (Tex.) 34 /Etna Life Ins. Co. v. Milward (Ky.) 66 /Etna Life Ins. Co. v. Po'rtland Gas & Coke Co. (U. S.) 24 /Etna Life Ins. Co. v. Rustin (Ky.) 66 /Etna Life Ins. Co. v. Vandecar (U. S.) 37 Allen V. Trav. Protective Assn. (Iowa) 66 American Ace. Ins. Co. v. Reigart (Ky.) 25, 59 Appel V. .Etna Life Ins. Co. (N. Y.) 10, 51 Armstrong v. West Coast Life Ins. Co. (Utah) 105 Ashelby v. Travelers (Minn.) 88 Atlanta Ace. Assn. v. Alexander (Ga.) 12 Bacon v. U. S. Mut Ace. Assn. (N. Y.) 24 Baehr v. Union Cas. Co. et al. (Mo.) 91, 115 Bailey v. Interstate Cas. Co. (N. Y.) 16, 104 Ballance v. Woodmen's Cas. Co. (111.) 88 Barry v. U. S. Mut. Ace. Assn. (U. S.) 49, 117 Bayless v. Travelers Ins. Co. (U. S.) 54 Beard v. Indemnity Ins. Co. (Va.) 67 Beile v. Travelers Protective Assn. of Amer. (Mo.) 20, 91, 115 Berger v. Pac. Mut Life Ins. Co. (U. S.) 37 Bernick v. 111. Com. Men's Assn. (111.) 76 Billings V. Ace. Ins. Co. of No. Amer (Vt) 39 Binder v. National Mas. Ace. Assn. (Iowa) 86 Bladcstone v. Standard Life & Ace. Ins. Co. (Mich.) 37 Bohaker v. Travelers Ins. Co. (Mass.) 27, 29, 33, 76, 115 Brinsmaid v. Order United Com. Trav. (Iowa) 106 Bryant et al. v. Continental Casualty Co. (Tex.) 20, 23, 43, 49, 59 Bumham et al. v. Interstate Cas. Co. (Mass.) 27, 29 Cady v. Fid. & Cas. Co. (Wis.) 38 Caldwell v. Iowa State Trav. Men's Assn. (Iowa) 64, 103 Campbell v. Fid. & Cas. Co. (Ky.) 42 Carnes v. Iowa Trav. Men's Assn. (Iowa) 63 Carnes v. Iowa Trav. Men's Ass'n (La.) 9, 71 Carr v. Pacific Mutual Life Ins. Co. (Mo.) 29, 31, 101, 109 Carroll v. Fid. & Cas. Co. (U. S.) l03 Gary v. Preferred Ace. Ins. Co. (Wis.) 88, 104, 112, 116 Central Ace. Ins. Co. v. Rembe (111.) 88, 103 Clark V. Employers' Liability Assur. Corp. (Vt.) 31 Clarke v. la. State Trav. Men's Assn. (la.) 53 Clidero v. Scottish Ace. Ins. Co. (Eng.) 10 Cobb V. Pref. Mutual Ace. Assn. (Ga.) 9 Collins V. Cas. Co. of America (Mass.) 106 Collins V. Fid. & Cas. Co. (Mo.) 42 Columbian Natl. Life Ins. Co. v. Miller (Ga.) 27, 29 11 Pagei cltea. Commercial Trav. Mut. Ace. Assn. v. Fulton (U. S.) 31, 86, 109, 116 Connell v. Iowa State Trav. Men's Assn. (la.) 79 Continental Cas. Co. v. Colvin (Kan.) 104, US Continental Casualty Co. v. Hunt (Ky.) 88, 104 Continental (lias. Co. v. Johnson (Kan.) 53 Continental Casualty Co. v. Lloyd (Ind.) 91, US Continental Casualty Co. v. Matthis (Ky.) 103 Continental Casualty Co. v. Peltier (Va.) S, 87, 102, 109, 117 Continental Cas. Co. v. Pittman (Ga.) 43, 49 Continental Casaulty Co. v. Semple (Ky.) IS, 116 Coudeau v. Amer. Ace. Co. (Ky.) , 66 Coulter V. Natl. Mas. Ace. Assn. (la.) 106 Crandall v. Continental Casualty Co.- (111.) 4, 86, 90, 94, 96, 100, 109, 116 Cronkhite v. Trav. Ins. Co. (Wis.) 64 David V. Com. Mut. Ace. Assn. (111.) 69 Delaney v. Modern Accident Club (la.) 103 Dent V. Ry. Mail Assn. (U, S.) 16 DeVan v. Com. Trav. Mut. Ace. Assn. (N. Y.) 66 Dozier v. Fid. & Cas. Co. of N. Y. (U. S.) ...43, 59 Driskell v. U. S. H. & A.^ Ins. Co. (Mo.) 4, 25, 91 Duncan v. Pref. Mut. Ace. Assn. (N. Y.) 36 Elsey V. Fid. & Cas. Co. (Ind.) 23, 43, 49 Erb V. Com. Mut. Ace. Assn. (Pa.) 42 Farner v. Mass. Mut. Ace. Assn. (Pa.) : 26, 103 Farnsleys Admr. v. Phila. Life (Ky.) 66, 74 Feder et al. v. la. State Trav. Men's Assn. (la.) 9, 43 Fetter et al. v. Fid. & Cas. Co. (Mo.) .91, US Fidelity & Cas. Co. v. Cooper (Ky.) 104, 115 Fidelity & Cas. Co. v. Freeman (U. S.) .' 79 Fidelity & Cas Co. v. Johnson (Miss.) 41 Fidelity & Cas. Co. v. Meyer (Ark.) IS, 91, 115 Fidelity & Cas. Co. v. Morrison (111.) 36 Fidelity & Cas. Co. v. Staeey's Exs. (U. S.) 4, 23, 103, 118 Fidelity & Cas. Co. v. Weise (111.) r 76 Fishblate et al. v. Fid. & Cas. Co. (N. C.) 90 Franklin v. Continental Cas. Co. (111.) 104 Freeman v. Merc. Mut. Aec. Assn. (Mass.) 92, 95, 109, 117 French v. Fid. & Cas. Co. (Wis.) 104, 112 Friskell v. U. S. H. & A. Ins. Co. (Mo.) US Furbush v. Maryland Cas. Co. (Mich.) 42, 78 Gallagher v. Fid. & Cas. Co. (N. Y.) 20, SO Gardner v. United Surety Co. (Minn.) 106 Ga3mor v. Travelers Ins. Co. ((ja.) '.. 42 General Ace, Fire & Life Assur. (Torp. v. Homely (Md.) 105 (General Ace, Fire & Life Assur. Corp. v. Meredith (Ky.) IS, 104 General Ace. v. Richardson (Ky.) 88, 106 Globe Ace. Ins. Co. v Gerisch (111.) 74 Goodes V. Order United Com. Trav. (Mo.) 91, US Gordon v. U. S. Cas. Co. (Tenn.) IS Greenlee v. Kansas City Cas. Co. (Mo.) 31, 33, 98 Guardian Mut. Life Ins. Co. v. Hogan (111.) 70 Guildenkirch et al. v. U. S. Mut. Ace. Assn. (N. Y.) 42, 66 Hall v. American Mas. Ace. Assn. (Wis.) 105 Hall v. Genl. Aec. (Ga.) 91, US HI Pages cited. Hastings v. Travelers Ins. Co. (U. S.) 4, 8, 14 Healey v. Mut. Ace. Assn. (111.) S3, 54 Herdic v. Maryland Casualty Co. (U. S.) 23, 43, 103 Hester v. Fid. & Cas. Co. (Mo.) 42 Hill V. Central Ace. Ins. Co. (Pa.) : 76 Hill V. Hartford Ace. Ins. Co. (N. Y.) 54, 76 H. P. Hood & Sons v. Maryland Cas. Co. (Mass.) 24 Hooper v. Standard Life & Ace. Ins. Co. (Mo.) 20, 91 Horsfall v. Pac. Mut. Life Ins. Co. (Wash.) 13 Hubbai-d v. Mutual Ace. Assn. (U. S.) 86 Hubbard v. Travelers Ins. Co. (U. S.) 86 Huguenin v. Continental Cas. Co. (S. C.) 105 Hutchcraft's Exs. v. Travelers Ins. Co. (Ky.) 40, 42 Hutton V. States Ace. Ins. Co. (111.) 41 Illinois Com. Men's Assn. v. Parks (U. S.) 86, 94, 109, 116 International Travs. Assn. v. Bosworth (Tex.) 15, V^ International Travs. Assn. vs. Branum (Tex.) i International Travs. Assn. v. Rogers (Tex.) 15 Interstate Business Men's Assn. v. Adcinson (Ky.) 39 Interstate Cas. Co. v. Bird, Admx. (Ohio) 28 Isitt v. Railway Pass. Assur. Co. (Eng.) 118 Jenkins v. Hawkeye Com. Men's Assn. (la.) 25, 59, 64, 66 Jenkins v. Pac. Mut. Life Ins. Co. (Cal.) 66 Jiroch V. Travelers Ins. Co. (Mich.) 86 Johns V. N. W. Mut. Relief Assn. (Wis.) 69 Johnson v. Continental Casualty Co. (Mo.) ; . . . .96, 105 Johnson v. Fid. & Cas. Co. (Mich.) . .- 25, 55 Jones V. U. S. Mut. Ace. Assn. (la.) 42, 79 Keefer v. Pac. Mut. Life Ins. Co. (Pa.) 28, 71 Klumb V. Iowa State Trav. Men's Assn. (la.) .■ 71 Konrad v. Union Cas. & Surety Co. (La.) 66 Laessig v. Travelers Pro. Assn. of Amer. (Mo.) 76 Lampkin v. Travelers Ins. Co. (Colo.) 79 Landon V. Pref . Ace. Ins. Co. (N. Y.) 54, 66 Larkin v. Interstate Casualty Co. (N. Y.) 30, 73, 106 Lawrence v. Ace. Ins. Co. (Eng.) 27, 29 Layton v. Interstate Bus. Men's Ace. Assn. (la.) 29, 39 Lehman v. Gt. Western Ace. Assn. (La.) ; 4, 10 Lenarick v. Natl. Cas. Co. (Minn.) 43 Lickleider y. Iowa State Trav. Men's Assn. (la.) 10 Lovelace v. Trav. Pro. Assn. of America (Mo.) f. .. 42 Ludwigv. Pref. Ace. Ins. Co. (Minn.) 13,88, 117 McAuley v. Casualty Co. of America (Mont.) 103 McCarthy v. Travelers Ins. Co. (U.S.) 8, 88, 104, 112 McCormick v. I. C. M. A. (U. S.) 106 McCullough V. Railway Mail Assn. (Pa.) 64, 105 McGlinchey v. Fid. & Cas. Co. (Me.) 16, 59 Mallory v. Travelers Ins. Co. (N. Y.) 30, 66 Maloney v. Maryland Cas. Co. (Ark.) 91, 16 Manufacturers' Ace. Indemnity Co. v. Dorgan (U. S.) 27, 29, 31 Martin v. Equitable Ace. Assn. (N. Y.) 104 Martin v. Mf rs. Ace. Indemnity Co. (N. Y.) 104 Martin v. Travelers Ins. Co. (Eng.) 1 Maryland Casualty Co. v. Burns (Ky.) ." 15, 105 IV Pages cited. Maryland Casualty Co. v. Glass (Tex.) 24, 89 Maryland Casualty Co. v. Hudgins (Tex.) 26, 55, 59 Maryland Cas. v. Morrow (U. S.) 86 Maryland Cas. Co. v. Ohle (Md.) 25 Merrett v. Preferred Mas. Mut. Ace. Assn. (Mich.) 28, 71 Meyer v. Fid. & Cas. Co. (la.) 31 Miller V. Fid. & Cas. Co. (U. S.) 19, 117 Modern Woodmen Ace. Assn. v. Shryock (Neb.) 98 Moon V. Order United Com. Trav. (Neb.) 98 Moore v. 111. Com. Men's Ass'n (111.) 9, 86 Morel V. Mississippi Valley Life Ins. Co. (Ky.) 36 Morrow v. Natl. Mas. Ace. Assn. (la.) 88, 104 Mutual Ace. Assn. v. Tuggle (111.) 53 National Assn. of Ry. Post Clerks v. Scott (U. S.) 63, 86, 102 National Mas. Ace. Assn. v. Shryock (U. S.) 2, 68, 85, 98 Nax V. Travelers Ins. Co. (U. S.) 16, 103 f w Amsterdam Cas. Co. v. Johnson (Ohio) .■ 10 . .ew Amsterdam Cas. Co. v. Shields (U. S.) 88, 117 Niskern v. Un. Bro. of C. & J. of America (N. Y.) 10, 51 Norman v. Order United Cora. Trav. (Mo.) 66 North American Life & Ace. Ins. Co. v. Burroughs (Pa.) 2, 11, 13 North Western Com. Trav. Assn. v. London Guarantee Co. (Can.) . . . .43, 52, 59 Noyes v. Com. Trav. East. Ace. Assn. (Mass.) 28 Omberg v. U. S. Mut. Ace. Assn. (Ky.) 25, 64, 103 Order United Com. Trav. of Am. v. Roth (Tex.) .88, 106 Pacific Mut. Life Ins. Co. v. Despain (Kan.) 86 Pacific Mut. Life v. McCabe (Ky.) 104 Pacific Mut. Life Ins. Co. v. Shields (Ala.) 15, 106 Pack V. Prudential Cas. Co. (Ky.) 16 Paul V. Travelers Ins. Co. (N. Y.) 54 Payne v. Frat. Ace. Assn. of America (la.) 36 Peck V. Equitable Ace. Assn. (N. Y.) 64, 105, 112 Penn v. Standard Life & Ace. Ins. Co. (N. C.) 86, 90, 96, 100, 109 Pervanger v. Union Cas. & Surety Co. (Miss.) 10 Phelan v. Travelers Ins. Co. (Mo.) 42 Phoenix Ace. & Sick Bene. Assn. v. Stiver (Ind.) 42 Pickett V. Piac. Mut. Life Ins. Co. (Pa.) 54 Pollock V. U. S^ Mut. Ace. Assn.^ (Pa.) 54 Potter V. iEtna Life Ins. Co. (Wash.) IS, 106 Prader v. Natl. Mas. Ace. Assn. (la.) 106 Preferred Ace. Ins. Co. v. Barker (U. S.) 26 Preferred Ace. Ins. Co. v. Fielding (Colo.) 67, 104 Preferred Ace. Ins. Co. v. Muri (U. S.) 34 Preferred Ace. Ins. Co. v. Patterson (U. S.) 9, 15, 86 Price V. Occidental Life Ins. Co. (Cal.) 41 Providence Life Ins. & Inv. Co. of Chicago v. Martin (Md.) 36 Prudential Cas. Co. v. Curry (Ala.) 16, 41 Railway Offs. & Emps. Ace. Assn. v. Coady (111.) 15, 106 Railway Offs. & Emps. Ace. Assn. v. Drummond (Neb.) 42 Railway Mail Assn. v. Harrington (U. S.) 64 Railway Officials & Emps. Ace. Assn. v. Johnson (Ky.) 52 Rathman v. New Amsterdam Cas. Co. (Mich.) 28, 31, 33 Reynolds v. Accidental Ins. Co. (Eng.) 27 Rheinheimer v. JEtna Life Ins. Co. (Ohio) 64, 88, 101, 104 Richards v. Travelers Ins. Co. (S. D.) 15 V Pages citSd. Riley v. Interstate Business Men's Ace. Assn. (la.) 10 Ripley v. Railway Pass. Assur. Co. (U. S. ) 3, 40 Robison v. Masonic Protective Assn. (Vt.) 67 Roblson V. U. S. Mut. Ace. Assn. (U. S.) 40, 42 Robison v. U. S. H. & A. (111.) 19, 86 Rock V. Travelers Ins. Co. (Cal.) 9 Rodney v. Travelers Ins. Co. (N. Mex.) 12, 88, 106 Royal Cas. Co. v. Nelson (Tex.) 106 Ryan v. Continental Cas. Co. (Nebr.) 34 Scarr v. General Ace. Assur. Corp. (Eng.) 11 Scheiderer v. Travelers Ins. Co. (Wis.) 26 Schmid v. Ind. Trav. Aee. Assn. (Ind.) 9, 43 Schneider v. Provident Life Ins. Co. (Wis.) 1, 36 Semaneik v. Con. Cas. Co. (Pa.) 23, 43, 49 Shanberg v. Fid. & Cas. Co. (U. S.) 8, 96, 116 Sharpe v. Com. Trav. Mut. Ace. Assn. (Ind.) 86 Simpkins v. Hawkeye Com. Men's Assn. (la.) 64, 103 Sinclair v. Maritime Pass. Assur. Co. (Eng.) — 43 Skinner v. Coml. Travelers (Mich.) 88 Smith v. Mtna Life Ins. Co. (la.) IS Smith V. Travelers Ins. Co. (Mass.) 10 Smouse v. Iowa State Trav. Men's Ass'n (la.) 10 Southard v. Railway Pass. Assur. Co. (Conn.) 3, 8 Standard Life & Ace Ins. Co. v. Schmaltz (Ark.) 12 Standard Life & Ace. Ins. Co. v. Thomas (Ky.) 104 Standard Life & Ace. Ins. Co. v. Thornton (U. S.) 79 Standard Life & Ace. Ins. Co. v. Wood (Md.) 106 Stanton V. Travelers Ins. Co. (Conn.) 86, 102, 116 Star Ace. Ins. Co. v. Sibley (111.) '66 State Life Ins. Co. v. Ford (Ark.) 42 Stokely v. Fid. & Cas. Co. (Ala.) 9, 86 Stone V. Fid. & Cas. Co. (Tenn.) 10 Stout V. Pac. Mut. Life Ins. Co. (Cal.) 7. ... 106 Streeter, Admr., v. West Union Mut. Life Ace. Assn. (Mich.) 38, 106 Strehlow v. .astna Life (111.) 88, 104 Stull V. U. S. H. & A. Ins. Co. (Ky.) 86, 102 Sullivan v. Modern Bro. of Amer. (Mich.) 25, 55 Summers v. Fid. Mut. Aid Assn. (Mo.) 19 Supreme Council Order of Chosen Friends v. Garrigus (Ind.) 42 Sutherland v. Standard Life & Ace. Ins. Co. (la.) 36 Talliferro v. Trav. Pro. Assn. of America (U. S.) 41 Taylor v. Gen. Ace. Assur. Corp. (Pa.) 31, 73 Taylor v. Pac. Mut. Life Ins. Co. (la.) 76 Tennant, Admr., v. Travelers Ins. Co. (U. S.) 74 Thomas V. Fid. & Cas. Co. (Md.) 86, 102 Thompson v. Loyal Protective Assn. (Mich.) 64, 88, 105 Thornton v. Travelers Ins. Co. (Ga.) 31 Thurber v. Com. Trav. Mut. Ace. Assn. (N. Y.) 105 Traiser v. Com. Travelers (Mass.) 106 Travelers Ins. Co. v. Bingham (Ky.) • • 104 "Travelers Ins. Co. v. Davies (Ky.) IS, 105 Travelers Ins. Co. v. Dunlap (111.) • ■ S3 Travelers Ins. Co. v. Hunter (Tex.) 67, 117 Travelers Ins. Co. v. Hunter (Tex.) 105 Travelers Ins. Co. v. McConkey (U. S.) 40, 78 Travelers Ins. Co. v. Mclnerney (Tex.) 116 Travelers Ins. Co. v. Melick (U. S.) 40, 106, 109, 115 VI Fasres cited. Travelers Ins. Co. v. Murray Colo.) 112 Travelers Ins. Co. v. Nicklas (Md.) 79 Travelers Ins. Co. v. Selden (U. S.) 8, 85 Travelers Ins. Co. v. Sheppard (Ga.) 66 Travelers Ins. Co. v. Wyness (Ga.) 42 Trew V. Railway Pass. Assur. Co. (Eng.) 1, 54 Tucker v. Mutual Ben. Life Ins. Co. (N. Y.) S3 Turtle V. Iowa State Trav. Men's Assa (la.) 37, 39 Union Cas. & Surety Co. v. Goddard (Ky.) 66 Union Cas. & Surety Co. v. Harrold (Tenn.) 42 United States Health & Ace. Ins. Co. v. Bennett's Admr. (Ky.) 90 United States Health & Ace. Ins. Co. v. Harvey (111.) 103 United States Mut. Ace. Assn. v. Barry (U. S.) 12, 49, 85 Van Emaa v. Fid. & Cas. Co. (Pa.) 26 Vernon v. Iowa State Trav. Men's Assn. (la.) 64, 88, 103 Vicars v. .Etna Life (Ky.) 38, 78 Wadsworth v. Canadian Ry. Accident Ins. Co. (Can.) 29 Ward v. ^tna Life Ins. Co. (Neb.) 86,99,102,117 Warner v. U. S. Mut. Ace. Assn. (Utah) 67 Washburn v. Natl. Ace. Society (N. Y.) 67 Western Com. Trav. v. Smith (U. S.) 17, 19, 88, 103 Western Indem. v. MacKechnie (Texas) 87 Westmoreland v. Pref. Ace. Ins. Co. (U. S.) 8, 89 Whele et al. v. U. S. Mut. Ace. Assn. (N. Y.) 54 White V. Standard Life & Ace. Ins. Co. (Minn.) 86, 112, 116 Whittlatch V. Fid. & Cas. Co. (N. Y.) 76 Wilkinson v. ^tna Life Ins. Co. (111.) 76 Williams V. U. S. Mut. Ace. Assn. (N. Y.) 37, 67 Winspear v. Ace. Ins. Co. (Eng.) 3, 28, 54 Wright V. Order of United Commercial Travelers of America (Mo.) . .21, 74, 97 Young V. Railway Mail Assn. (Mo.) 19 A Brief on the Insuring Clause of Personal Accident Policies CHAPTER I. The Origin and Evolution of the Insuring Clause. An "accident" is defined by Webster as "an event that takes place without one's foresight or expectation; an un- designed, sudden and unexpected event; chance; contin- gency." This definition has been repeatedly quoted by the courts who have in some instances added to and embellished it. It would answer no good purpose to call attention to the great number of immaterial variations and additions to Web- ster 's definition which they have made. Suffice it to say that in practically all cases the courts seem to have relied upon this definition as a basis and to have in reality added nothing to it. The first personal accident policies were issued in the United States in 1864. The company which wrote them fol- lowed the example of an English company which had been issuing these policies for some years. One of the earliest cases in the United States construing the insuring clause of a policy of this character is Schneider v. Provident Life Ins. Co., 24 Wis., 28, decided by the Supreme Court of Wisconsin in 1869. It appears from the opinion that the policy insured "against personal injury arising from accident and causing death. ' ' This insuring clause was very similar to that contained in a policy issued by the Railway Passenger Assurance Corporation on the 6th of September, 1856, and construed in Trew v. Railway Pass. Assur. Co., England, 1861, 6 H. & N., 838, which provided to pay death indemnity if the insured should die from the effects of "any injury caused by accident or violence," with a further proviso that there should be no liability unless the injury was "caused by some outward and visible means." In the case of Martin v. Travelers Ins. Co., England, 1859, 1 F, & F., 505, it appears from the opinion that the court had before it a policy in which the insuring clause was nearly identical with that just quoted. It insured "against any bod- ily injury arising from any accident or violence 'provided that the injury should be occasioned by any external or material cause operating on the person of the insured.' " The draftsmen of the first policies of accident insurance naturally did not fully appreciate the complexity and infinite variety of the hazard they proposed to insure against and did not realize what an exceedingly comprehensive liability they assumed. See for instance the case of North American Life (& Ace. Ins. Co. V. Burroughs, decided by the Supreme Court of Pennsylvania in 1871, 69 Pa. State, 43, where the policy agreed to pay death indemnity "in case of death resulting * * * in consequence of accident." In the case of Martin v. Travelers, supra, it appeared that the insured had voluntarily lifted a heavy burden and strained his back. The court held that the company was liable. Be- cause of these and other similar experiences the companies soon found it necessary to change the insuring clause. They began to appreciate that the clause as originally drawn was somewhat ambiguous and that there was grave danger that the courts would hold that they were in reality insuring against all fortuitous and unexpected bodily injuries, defects, or lesions, external or internal, and many of the infinite num- ber of morbid changes brought about by disease or abnormal conditions. In one sense practically all of them are accidents and fall within the definition given by Webster and repeatedly quoted by the courts. Some of the companies early recognized the necessity of stipulating that the means or manner in which the injury is brought about must be of an external and violent character. We have already shown that in the Tretv case, 1861, the policy provided that the injury must be "caused by some outward and visible means;" in the Martin case, 1859, that the injury must be occasioned by "external or material cause operating on the person." It is interesting to note, however, that not all of the companies even considered it necessary to insert this qualification since in the Burroughs case, 1871, the policy provided to pay "in case of death resulting * * * in consequence of accident. ' ' The companies soon found that it was also necessary, if they wished to avoid liability for an unexpected and unfore- seen injury brought about by the voluntary act of the in- sured, done in the way that he intended to do it, still further to modify the insuring clause. Under the policies construed in the cases above referred to it was at least doubtful whether there was liability for death resulting from the accidental re- sult of an intentional act done in the way intended. If a man voluntarily attempts to lift a weight and without slipping or falling but simply because of the voluntary exer- tion, receives an injury, such as a strain, a rupture or a burst ^ artery, such injury is evidently accidental since it is unforeseen, unfortunate and undesigned. It is also pro- duced by external and violent means under the holding of the court in the Martin case and in many later cases. In such a case, however, the means bringing about the accidental re- sult are not accidental. In other words, the insured does something which he intends, in a way that he intends, and the only thing unexpected, fortuitous and undesigned, is the result. The companies therefore, to protect themselves against uu expected and accidental results from voluntary acts done as intended, inserted a further qualification in the insuring clause, to-wit, that the "means" must not only be external and violent, but also accidental; that is to say, that the means producing the result, as well as that result, must be accidental. It is difficult definitely to ascertain whether the use of the phrase "accidental means" first came about in England or America. In any event we find that in the case of Southard v. Railway Pass. Assur. Co., 34 Conn., 574, decided in 1868, nearly ten years after the decision of the Trew and Martin cases, the court had before it a policy which provided to pay death indemnity upon proof "that the insured * * * shall have sustained bodily injuries, effected through violent and accidental means," with a further provision excluding liabil- ity for ' ' any death or disability which may have been caused wholly or in part by bodily infirmities or disease, existing prior or subsequent to the date of this contract." In the case of Ripley v. Railway Pa&s. Assur. Co., Fed. Case No. 11,854, decided by the U. S. Circuit Court in 1870, and af- firmed by the U. S. Supreme Court in 1872, 16 Wal., 336, the policy insured against death resulting from "bodily injuries, effected from violent and accidental means." A good illustration of the clause used by the English com- panies after this modification appears in Winspear v. Ace. Ins. Co., 6 L. R. Q. B. Div., 42, decided in 1880, where the pol- icy insured against the effects of "personal injury caused by accidental, external and visible means, L' and provided that it would not extend to injuries "caused by or arising from natural disease or weakness or exhaustion consequent upon disease, * * * or to any death arising from disease al- though such death may have been accelerated by accident." As examples of the modern insuring clause, see Fidelity S Gas Go. v. Stacey's Exs., U. S. Cir. Ct. Apps., 1906, 143 Fed., 271 : The insurance was against death "resulting directly, and independently of all other causes, from bodily injur- ies sustained through external, violent and accidental means." Driskell v. U. 8. H. <& A., 1906, 117 Mo. App., 362; 93 S. W., 880: The insurance was against death resulting "solely" from "bodily injuries caused solely and exclusively by external, violent and accidental means." Lehman v. Gt. Western Ace. Assn., 1911, 153 la., 118 ; 133 N. W., 752: The insurance was "against the effects of personal bodily injury caused solely by external, violent and acci- dental means." Hastings v. Travelers Ins. Go., U. S. Cir. Ct., 1911, 190 Fed., 258 : The insurance was "against bodily injuries, effected directly and independently of all other causes through external, violent and accidental means." Grandall v. Gontinental Gasualty Gompany, App. Ct. 111., 1913, 179 111. 1pp., 330. The company agreed to pay death indemnity if the in- sured should receive bodily injury "effected directly and independently of all other causes through external, vio- lent and purely accidental means resulting in the death of insured necessarily and solely from such injury." Of course there is no peculiar efificacy or magic about the words "accidental means." The same idea may be conveyed by other phraseology. In fact it was conveyed, although per- haps not as clearly as it might have been, by the insuring clause of some of the very early policies, drawn before the accidental means phrase came into common use. See for in- stance the case of Trew v. Railway Pass. Assur. Co., already referred to, where the policy provided to pay death benefits if insured should die from the effect of "any injury caused by accident." This is really only another, though less ex- plicit way of saying "an injury effected through accidental means," and is clearly distinguishable from a policy insuring against ^'^ death from accident," or "death from an accidental cause." As illustrative of a modified insuring clause conveying the same meaning as is expressed by the phrase "accidental means," see the case of Continental Cas, Co. v. Peltier, 1905, 104 Va., 222; 51 S. E., 20,9, where the policy provided to pay indemnity for loss resulting from injuries "effected * * * through * * * purely ac- cidental causes." One of the leading accident companies is now using in some of its policies an insuring clause providing to pay indemnity for loss resulting from bodily injury "which is effected solely and independently of all other causes by the happening of an external, violent and purely accidental event." From the foregoing it appears that there is no liability im- der the usual insuring clause of a modern accident policy until the claimant has established (1) That the insured has received an injury effected through external, violent and accidental means. (2) That an injury so effected has been the sole cause of death or disability. A discussion of the insuring clause, therefore, resolves it- self naturally into two divisions. We propose to discuss first the cases pertinent in connection with the determination of when an injury may be considered as having been effected through external, violent and accidental means. Inasmuch as there are a comparatively small number of reported deci- sions considering the meaning to be given to the adjectives "external" and "violent," and as the questions arising in regard to their proper construction are less involved than those presented in a consideration of the remaining adjective "accidental," we shall, in our discussion, reverse the order in which these adjectives usually appear in the insuring clause, considering the last first. We shall reserve for a later portion of this brief the con- sideration of when and under what circumstances an injury may be regarded as the sole cause of death or disability. In that connection we shall also discuss the wording of the in- suring clause as it has been construed by the courts, in par- ticular reference to the various ways in which the companies have sought to express the idea that the injury must be the sole cause of death indepehdent of every other cause. In their attempt to convey that idea, they have made use of many qualifying phrases and adjectives and have provided that the injuries must.be "the sole cause of death;" must cause death "independent of any other cause;" must be the "sole and exclusive" cause of death, etc. They have also in many cases, either directly following the insuring clause or in some other part of the policy, inserted a proviso that there shall be no liability where death is "caused wholly or in part by bodily infirmities or disease"; where death is occasioned "directly, or indirectly in consequence of any disease," etc. The mean- ing and effect of these qualifying words and phrases will be discussed later. It may be noted in passing, however, that the companies have frequently used the same, or similar qualifying words and phrases in connection with what we have heretofore re- ferred to as the first branch of the insuring clause, and by their use have also endeavored to make it clear that there is to be no liability where the injury, as distinguished from the death or disability, is brought about "wholly or in part," "directly or indirectly," etc., by disease or bodily infirmity. The use of these words and phrases indiscriminately in con- nection with both branches of the insuring clause has given rise to much confusion and misunderstanding. Again the double nature of the correct insuring clause has in some instances entirely escaped the attorneys who have drawn the policies for the companies. In some cases they have totally disregarded it and, instead of providing that the injuries must be received through accidental means and must be the sole cause of death, they have simply stated that the company will pay indemnity for death, as distinguished from injury, "effected by accidental means." tfnder these cir- cumstances it is not at aU strange that there has been a great deal of blind and aimless floundering about in the maze of conflicting, ilVeonsidered, and in some cases almost unintelli- gible terminology which some companies have used in drawing their contracts. Proceeding with the first branch of this subject, we again call attention to the elementary proposition that an accidental injury is not necessarily effected through accidental means. Before there can be liability for the results of an injury, it must be shown not only that such injury was accidental in the sense that it was unforeseen, unfortunate and not brought about by^ design, but that the "means" by which it was effected were also accidental. There must be an accident brought about by an accident. The vital distinction is between the means and the result. Both must be accidental. For example, a man is swinging an Indian club in a way which he intends. As a consequence he sprains a muscle or ruptures an artery. He has done nothing which he did not expect to do and has done what he expected to do in the pre- cise manner intended. The result of course is undesigned and fortuitous. That result is unquestionably accidental. At the same time it is clearly not effected through accidental means. If we inject into the hypothetical case just suggested the further hypothesis that the club strikes a chandelier or some other object, and, as a consequence, the unexpected and undesigned sprain or rupture occurs, then we have the neces- sary element of accidental means bringing about an acci- dental result and the company is liable, if the resultant injury is the sole cause of death or disability. The failure to keep clearly in mind the fundamental propo- sition that there must be an accidental means as well as an accidental result is largely responsible for many conflicting decisions and much uncertainty and misunderstanding as to the law. It must be admitted that this misunderstanding is still very prevalent not only on the part of ^the courts and the bar generally, but even on the part of some attorneys who have represented the companies in the courts. The question has been further obscured and muddled by ill-considered and broad general statements which the courts have made, even in decisions where they have arrived at a correct conclusion. These statements, entirely ignoring the.^ distinction between accidental means and accidental result, when taken by themselves and apart from the facts of the par- ticular case, are very misleading and have often confused the courts who have been called upon to decide subsequent cases, similar in nature, but properly distinguishable on this vital point. 8 CHAPTER 11. Classification and Discussion of Autliorities on "Accidental Means." Among the infinite number of casualties for which claim is made against accident companies, many cases arise which are very d^cult to decide correctly. These problems can best be elucidated in connection with the cases in which they have arisen. We have, therefore, divided and classified the reported cases into groups, bringing together those authorities which by reason of the facts involved and the decisions of the courts , upon those facts may naturally and logically be considered as enunciating the same legal conclusions. Proposition No. 1. There can be no recovery under a policy insuring against the result of an injury effected through accidental means, where such injury, although totally unexpected, fortuitous and undesigned, and in that sense accidental, is occasioned by a voluntary act on the part of the insured, executed in an ex- pected and ordinary way, since such injury, though accidental, is not effected through accidental means. Southard v. Railway Pass. Assur. Co., 1868, 34 Conn., 574. Hernia from jumping off of car and running without stumbling or falling. McCarthy v. Travelers Ins. Co., 1878, 8 Bissell, 362, Federal Case No. 8682. Rupture of blood vessel while exercising with Indian clubs. Westmoreland v. Pref. Ace. Ins. Co., 1896, 75 Federal, 244. Death occasioned by voluntary administra- tion of chloroform in the usual way. Travelers Ins. Co. v. Selden, 1897, 78 Federal, 285. Injury received by running rapidly over rough ground without stumbling or falling. Shanberg v. Fid. & Cas. Company, 1905, 158 Fed., 1 ; affirming 143 Fed., 651. Injury from carrying one end of heavy door without slipping, stumbling or falling. Hastings v. Travelers Ins. Co., 1911, 190 Federal, 258. Dilation of heart produced by insured voluntarily raising himself up and down in chair by placing hands on arms of chair. Preferred Ace. Ins. Co. v. Patterson, 1914, 213 Fed., 595. Death from injury to kidneys occasioned by slipping while cranking automobile. Under evi- dence held case for jury, but the court states that if insured had not slipped and only did what he in- tended, the resultant injury would not be consid- ered as effected by accidental means. Stokely v. Fid. S Gas. Co., 1915, 193 Ala., 90; 69 So., 64. Insured coughed, bursting stitches of wound occasioned by a previous operation for appendi- citis. Roch V. Travelers Ins. Co., 1916, Cal. ; 156 Pac, 1029. Death occasioned by heart dilation due to unusual but intentional exertion. Cohh V. Pref. Mut. Ace. Assn., 1895, 96 Ga., 818 ; 22 S. E., 976. Blindness, presumably occasioned by walking with heavy grips on hot day, without slip- ping or falling. Moore v. III. Com. Men's Assn., 1911, 166 111. App., 38. Burden on plaintiff to show injury effected through accidental means. Schmid V. Ind. Trav. Ace. Assn., 1908, 42 Ind. App., 483; 85 N. E., 1032. Paralysis of heart caused by • high altitude and unusual strain occasioned by muscular exertion in carrying grip upstairs in rarified atmosphere. Result of voluntary physical exertion or vicissitudes of climate or atmosphere, although unexpected and unforeseen, not due to accidental means. Carnes v. Iowa Trav. Men's Assn., 1898, 106 la., 281 ; 76. N. W., 683. Death from intentionally taking morphine tablets, if insured intends to take amount he does take and misjudges effects, although totally unexpected and unforeseen, not due to an "acci- dental cause." Feder et al. v. la. State Trav. Men's Assn., 1899, 107 la., 538; 78 N. W., 252. Death from rupture of artery from attempt to close window shutters ; no evidence that insured fell, slipped, lost balance, failed to catch shutter, etc., or that anything oc- curred which was not foreseen and planned ex- cept the rapture; not due to an "accidental cause." 10 8mouse v. Iowa State Trav. Men's Assn., 1902, 118 la., 436 ; 92 N. W., 53. Death from rupture of blood vessel by a voluntary attempt to remove night shirt over head, not due to an "accidental cause." Lehman v. Great Western Ace. Assn., 1911, 153 la., 118 ; 133 N. W., 752. Appendicitis occasioned from strain while bowling without slipping or falling. LicMeider v. Iowa State' Trav. Men's Ass'n., 1915, Iowa ; 151 N. W., 479. Death from blood clot oc- casioned by exertion in removing automobile tire in the manner intended. Biley v. Interstate Business Men's Ace. Assn., 1915, Iowa; 152 N. W., 617. Insured intending to take medicine took poison by mistake. Court intimates company liable, but says would be no liability if insured knew what he was taking but misjudged the result. Smith v. Travelers Ins. Co., 1914, 219 Mass., 147; 106 N. E., 607. Death from meningitis occasioned by vountarily sniffing medicine into nose, which, by reason of peculiar construction of bones of head, carried certain germs into brain. Pervanger v. Union Cas. <& Surety Co., 1904, 85 Miss., 31 ; 37 Sou., 461. Court intimates in passing on demurrer that injury from voluntary lifting and* straining not due to accidental means, but contra if weight fell and struck insured. Appel V. ^tna Life Ins. Co., 1903, 83 N. Y. Sup., 238 ; affirmed 180 N. Y., 514. Appendicitis from riding bicycle over rough ground without fall or collision. -NisJcern v. Uni. Bro. of C. <§> J. of America, 1904, 87 N. Y. Sup., 640. Disability caused by rupture of blood vessel from voluntary lifting not occasioned by "accidental injuries." New Amsterdam Cas. Co. v. Johnson, 1914, 91 Ohio, 155; 110 N. E. 475. Hear_t dilation occasioned by voluntarily plunging into cold bath after violent exertion. Stone V. Fid. <& Cas. Co., 1916, 133 Tenn., 672; 182 S. W., 252. Loss of sight occasioned by sudden but intentional exertion causing blood clot. Clidero v. Scottish Ace. Ins. Co., England, 1892, 29 Scottish Law Reporter, 303. Insured pulling on 11 stocking felt something give way. Autopsy dis- closed colon had fallen out of place, causing death. No evidence of slip or other accidental means. Scarr v. General Ace. Assur. Corp., England, 1905,. 1 Kings Bench, 387. Exertion in ejecting drunken man from premises. See also the Sunstroke cases, under Proposition No. 12. Proposition No. 2. Where an accident policy provides to pay indemnity in case of death resulting "in consequence of accident," or words to that effect, and does not limit liability to death which is the result of injuries effected through accidental means," and the insured dies as the result of an unexpected and undesigned injury brought about by voluntary exertion, the company is liable. North American Life & Ace. Ins. Co. v. Burroughs, 1871, 69 Pa. State, 43. ' The evidence in this case showed that the insured, in per- fect health, was pitching hay and the fork handle slipped through his hand and struck hun on the stomach, producing in- jury which caused death. Under the evidence, therefore, death resulted from an injury effected through accidental means. In the proofs filed by the beneficiary, however, no mention was made of the fact that the fork handle slipped and struck the insured, and it was merely alleged that the injury resulted from a strain. The defendant contended that there was a yariance between the evidence and the proofs of death filed by the beneficiary. The Supreme Court of Pennsylvania very properly concluded that under the insuring clause it made no difference whether the injury was caused by a strain from voluntary exertion or by a blow from the accidental slipping of the fork handle, since, in either contingency, it is clear that the death resulted "in consequence of accident." This case has been repeatedly cited by the courts in later decisions construing policies essentially different from that held by Burroughs in the fact that, instead of insuring against death resulting "in consequence of accident," they insured against death resulting "from injury effected through acci- dental means." In many of these later cases the courts have entirely overlooked this distinction and have relied upon the Burroughs case as authority for holding the company liable 12 where the death was brought about by an accidental injury effected by voluntary exertion, that is to say, by an act done ill an expected and usual way without any element of accident in the means bringing about the accidental result. Proposition No. 3. A result such as follows from ordinary means voluntarily employed in a not unusual or unexpected way cannot be called a result effected by accidental means, but if in the act which precedes the injury something unforeseen, unexpected and unusual occurs which produces the injury, then the injury is effected by accidental means. If the insured does something which he intends to do but involuntarily does that thing in a way different than he intended and because of some involun- tary movement of the body an injury results, such injury is effected by accidental means. U. S. Mut. Ace. Assn. v. Barry, 1889, 131 U. S., 100, aflSrming 23 Fed., 712. Insured voluntarily jumped from platform following two companions who jumped without injury. Evidence showed he came down heavily on his heels and not on his toes, as would naturally be expected, producing stricture of the duodenum. Held for jury under proper in- struction to determine whether there was an invol- untary twist, turn or wrench of body in jumping. Under a few authorities it seems that where the thing which the insured attempts to do is of such a character as would not ordinarily be expected to bring about an injury, and where, from all of the surrounding circumstances, it is appar- ent that, in doing said thing, the insured probably involun- tarily turned or twisted his body or got into an unexpected position, even where there is no direct evidence upon which to base such a conclusion, it is for the jury to determine, as a question of fact, whether or not the insured involuntarily turned or twisted his body in an unusual and unexpected way. Rodney v. Travelers Ins. Co., 1886, 3 N. Mex., 316 ; 9 Pac. Eep., 348. Standard Life (& Ace. Ins. Co. v. Schmdlts, 1889, 66 Ark., 588; 53 8. W., 49. Atlanta Ace. Assn. v. Alexander, 1898, 104 Ga., 709- 30 S. E. 939. 13 H or s fall v. Pac. Mut. Life Ins. Co., 1903, 32 Wash., 132; 72 Pac, 1028. Ludwig v. Pref. Ace. Ins. Co., 1911, 113 Minn., 510; 130 N. W., 5. In the Rodney case it appears that the insured ruptured his ear drum while diving, which injury would of course be acci- dental, although not brought about by accidental means un- less there was some involuntary slip, turn or twist. There was no evidence of such means. The court said that under the circumstances the jury was justified in finding that there was a slight accidental turn of the body. In the Schmaltz case the insured, in perfect health, removed a cylinder head weighing 80 pounds, with a steel bar, dropping the bar as the cylinder head came off and, while in stooping position, grasping same to prevent it falling. As a result he ruptured a blood vessel in his stomach. The court (follow- ing the 5arr«/ case) laid down correct propositions of law, without referring to the fact that there was evidence in that case that the insured alighted on his heels in an unexpected manner, and approved the trial court's action in allowing the case to go to the jury. In the Alexander case, the insured, a blacksmith, in perfect health, struck a slanting blow with a heavy sledge hammer and felt severe pain, which proved to have been caused by hernia. The court relied on the Barry case but does not ap- pear to have recognized the distinction between an accidental result and accidental means pointed out in that case. It also relied upon the case of North American Life S Ace. Ins. Co. V. Burroughs, 1871, 69 Pa. State, 43, to support the conclusion that an accidental death, and death from injury effected by accidental means, amount to the same thing, apparently with- out understanding that the policy construed in the Burroughs ease did not contain the accidental means clause and insured broadly against death "resulting * * * in consequence of accident." The opinion therefore contains some misleading and incorrect statements. In the Horsfall case, the insured, a blacksmith, apparently in perfect health and very strong, lifted one end of a bar weighing about 400 pounds. In doing so he was compelled to stand on top of a pile of iron and reach below his feet. After lifting the bar and helping to carry it a short distance, his heart became dilated, causing death. The Supreme Court of Washington, as did the Supreme Court of Georgia in the 14 Alexander case, relied upon the Barry and Burroughs cases in support of its conclusion that death by accident "is death from an unanticipated event which happens as by chance, or does not take place according to the usual course of things." The conclusion that the death was accidental was clearly cor- rect. The court, however, entirely overlooked the distinction between accidental death and death from injuries caused by accidental means, pointed out in the Barry case, and seems also to have been oblivious of the difference between the in- suring clause before it for construction and that before the Pennsylvania court in the Burroughs case. The Horsfall case has been frequently cited in support of the palpably erroneous conclusion that there is no difference between an accidental death aind a death resulting from injuries effected through ac- cidental means. It has, however, been recently distinguished by the United States Circuit Court for the District of Wash- ington in the case of Hastings v. Travelers Ins. Co., 1911, 190 Fed., 258. In the Ludwig case the insured, while playing baseball, at- tempted to steal second and slid head foremost, stopping with his stomach over and above second base, which consisted of a cement block, and thereby injuring himself. The Minnesota court relied upon the Barry case and seems to have realized the real effect of that decision, quoting from it to the effect that a result, though unexpected, is not an accident, if it was caused by means voluntarily employed, but held that there was evidence sufficient to justify the jury in fiLnding for the plaintiff. The trial court, however, instructed the jury that if the injury was unforeseen and unexpected and not brought about designedly, it would be considered as due to accidental means. This instruction was flagrantly erroneous and the Supreme Court conceded that it was not strictly accurate but, for reasons best known to itself, held that the error was not sufficient to reverse. The conclusion reached in these cases may perhaps be justi- fied on the theory that there was some circumstantial evidence indicating an accidental turn or twist or involuntary move- ment in the act preceding and bringing about the accidental result, which was sufficient to take the case to the jury. Propositioin No. 4. Where there is evidence that in the act which precedes and brings about an injury causing death, something undesigned 15 and fortuitous occurs, tkat is to say where there is evidence of an element of accident in the means bringing about the in- jury, the verdict of a jury holding the company liable will not be disturbed on appeal. Preferred Ace. Ins. Co. v. Patterson, 1914, 213 Fed., 595. Death from injury occasioned by slipping while cranking automobile. Pac. Mut. Life Ins. Co. v. Shields, Ala., 1913, 62 Sou., 71. Insured fell and struck head on brick. Fid. S Cas. Co. v. Meyer, Ark., 1912, 152 S. W., 995. Insured fell and struck back on wagon seat. Railway Offs. S Emps. Ace. Assn. v. Coady, 1889, 80 ni. App., 563. Insured while running, stumbled and fell. ■ Smith V. ^tna Life Ins. Co., 1901, 115 la., 217; 88 N. W., 368. Insured tried to get off moving train in dark, stood on lower step, acted as if he thought another step below, fell and was killed. Continental Casualty Co. v. Semple, Ky., 1908, 112 S. W., 1122. Insured riding spirited and unruly horse which gave him "a terrible knock." General Ace, Fire S Life Assur. Corp. v. Meredith, 1910, 141 Ky., 92 ; 132 S. W., 191. Insured running, failed to notice step and received severe jolt. Maryland Casualty Co. v. Burns, 1912, 149 Ky., 550; 149 S. W., 867. Insured fell from counter to floor three feet below. Travelers Ins. Co. v. Davies, Ky., 1913, 153 S. W., 956. Insured received unexpected wrench or blow. Richards v. Travelers Ins. Co., 1904, 18 S. D., 287; 100 N. W., 428. Insured tried to step from the top of one car to another and fell. Gordon v. U. 8. Cas. Co., Tenn., 1899; 54 S. W., 98, Insured's arm was broken by sudden jerk of car which he was attempting to board. International Travs. Assn. v. Bosworth, 1913, Texas ; 156 S. W., 346. Insured struck by missile thrown by unknown person. International Travs. Assn. v. Rogers, 1914, Texas; 163 S. W. 421. Piece of dirt blew in insured's eye. Potter V. Mtna Life Ins. Co., Wash., 1912, 128 Pac, 647. Insured accidentally inhaled certain poison- ous gases. 16 The following cases are sometimes cited as contrary to what we have heretofore laid down as the correct rule : Nax. V. Travelers Ins. Co., 1904, 130 Fed., 985, re- versed, 142 Fed., 653. McGlinchey v. Fid. & Gas. Co., 1888, 80 Me., 251; 14 Atl., 13. Dent v. By. Mail Assn., 1910, 183 Fed., 840, affirmed, 1914, 213 Fed., 981. Bailey v. Interstate Cas. Co., 1896, 40 N. Y. Sup., 513; affirmed without opinion 158 N. Y., 723; 53 N. E., 1123. Prudential Cas. Co. v. Curry, 1914, 10 Ala. Apps., 642; 65 Southern, 852. Moloney v. Maryland Cas. Co., 1914, 113 Ark., 174; 167 S. W., 845. Pack V. Prudential Cas. Co., 1916, 170 Ct. Apps. Ky., 47; 185 8. W., 496. International Travs. Assn. v. Branum, 1914, Texas; 169 S. W., 389. The decision of the lower court in the Nax case is mislead- ing. The death of the insured was caused by septicaemia fol- lowing a self inflicted knife cut, made by the insured while trimming a corn. There is nothing to indicate that the knife slipped, or that there was any accidental means, and the court appears to hold by implication that under such circumstances the company would be liable. This is cleared up, however, by the decision of the Court of Appeals where it appears that the knife "slipped." In the McGlinchey case it appeared that the insured was driving a horse which became frightened and ran away. He finally controlled the horse but immediately experienced pain, and died in an hour, either from fright or from some injury produced by his violent exertion, in controlling the horse. The court very briefly disposed of the contention, apparently made by the defendant, that the death was occasioned by fright and hence was not due to an injury effected through accidental means, by saying that this "was a plain accident causing death;" that under the evidence it believed death was pro- duced by a ruptujed blood vessel near the heart, caused by ex- traordinaiy physical and mental exertion, but that even if the death was due to fright, the company was liable. The reason- ing of the court is not particularly enlightening and is a little 17 misleading. The conclusion that the case was for the jury- seems to be correct. The runaway was clearly unforeseen and undesigned. The evidence also probably justified a finding of some involuntary and unpremeditated movement on the part of the insured. Under these circumstances, there was certainly some evidence of accidental means. There was also evidence indicating that, as a result of such accidental means, the in- sured suffered some sort of a bodily injury which was the cause of death. In the Dent case the insured came to his death from poison- ing, following an apparently involuntary contact with poison ivy. The contract was in the usual form, and the conclusion of the court was probably correct. The evidence certainly jus- tified a finding that the insured involuntarily and accidentally came in contact with the poison ivy and that, as the result of such accidental means, he suffered a fortuitous, that is to say, an accidental bodily disorder, in the nature of an injury, which was the cause of death. The reasoning of the court, however, is erroneous since, following the authority of Western Com. Trav. v. Smith, 85 Fed., 401, which will be discussed later, it concluded that a "means" is accidental when it produces effects which are not themselves natural and probable conse4uences, and which would not ordinarily follow from their use. If this be true, then there would be liability where an insured voluntarily ex- erts himself in precisely the manner intended, receiving, in consequence of such exertion, an injury which is not the nat- ural and probable consequence, and which would not ordi- narily follow from the exertion. We have already shown that under the overwhelming weight of authority there is no lia- bility in such a case, yet, for some unexplainable reason, many courts, and the textbook writers generally, have laid down the proposition promulgated by the court in the Dent and Smith cases and then, almost in the same breath, have stated there would be no liability in the hypothetical case just sug- gested. The decision of the lower court in the Dent case was af- firmed on appeal in 1914. That the Court of Appeals did not at all appreciate the point involved is indicated by the fact that it cites in support of its conclusion an English case con- struing the English Compensation Act. It is scarcely neces- sary to point out that the wording of the English act which, by the way, expressly covers occupational diseases, is entirely 18 dissimilar to that of the personal accident policy involved in the Dent case. In the Bailey case it appeared that the insured attempted to inject morphia into his leg while in a buggy and that septicaemia resulted. The court, apparently without realiz- ing the import of the decision in the Barry case, relied upon that case to sustain a statement that an unexpected result from usual and intentional means is effected through acci- dental means. The court's sweeping remarks in this con- nection are misleading and predicated upon a misunderstand- ing of the Barry case. Its conclusion can be justified, how- ever, because there seems to have been some evidence that the horse started just as the insured was using the needle, causing him to insert it further than he intended. The neces- sary element of accidental means bringing about the acci- dental result seems, therefore, to iave been present. In the Curry case it appeared that the insured was shot and that his own misconduct was the occasion of the murderous assault upon him. The insuring clause was in the usual form. The court concluded that the injury was not accidental as to the insured because his conduct was such that he might have reasonably expected the injury to follow as the logical result thereof. This phase of the case 'will be discussed in connec- tion with Proposition No. 11. It is apparent that the court had only occasion to determine as to whether the injury was accidental and not as to whether it was effected by accidental means. In its discussion the court apparently did not have clearly in mind this distinction and some of its obiter state- ments are inconsistent with what is believed to be correct doctrine. In considering the effect of this case it should be borne in mind that the only point at issue and the only point decided was that an injury received under the circumstances above indicated is not accidental. The result being non- accidental and there being therefore no liability, the court was not called upon to determine the character of the means pro- ducing such result. In the Moloney case it appeared that the insured died from blood poisoning. The company contended that this disease was occasioned by a bed sore. Plaintiff introduced evidence indicating that it followed from an injury occasioned by being accidentally struck by a bed pan. The case was submitted to the jury which found for the defendant. The Supreme Court of Arkansas reversed judgment for the defendant, principally 19 because of certain instructions pertaining to the question as to whether the injury was the sole cause of death. In so far as this point is concerned the case will be discussed in a subse- quent portion of the brief. The trial court also instructed the jury that if the injury was the natural and probable conse- quence of an action intended by those waiting upon Maloney, it could not be considered as having been effected by acci- dental means. The Supreme Court properly held this instruc- tion to be erroneous. Obviously its effect was to tell the jury that an injury intentionally inflicted upon the insured by another person, was not effected by accidental means. As we have pointed out, under Proposition No. 10, this is not true. The Pack case will be discussed in connection with the question of sunstroke under Proposition No. 12. In the Branum case it appeared that insured died from apoplexy apparently caused by the excitement of witnessing a fire. The insuring clause under which claim was made was, however, not in the usual form and covered broadly "acci- dental death." The Texas Court of Civil Appeals concluded that it would not disturb a verdict in favor of the plaintiff, saying that under the circumstances of this case it was clearly a death by accident. Its conclusion was, of course, correct since the apoplexy and subsequent death were fortuitous, undesigned and unforeseen. In the same sense any death from disease would be accidental. If the insuring clause had been drawn in the usual way there would clearly, as a matter of logic, have been no liability in this case because no acci- dental means were shown. The result only was accidental. The court disposes of the point under discussion very briefly, citing a number of authorities which have little or no applica- bility. The conclusion is correct because of the peculiar insur- ing clause and the case is, therefore, not contrary to our position. In the following cases the conclusion as well as the reason- ing of the courts seems to be erroneous : Western Com. Travelers v. Smith, 1898, 85 Fed., 401, Miller v. Fid. S Cas. Co., 1899, 97 Fed., 836. RoUson v. U. 8. E. & A., 1915, 192 111. App., 475. Summers v. Fid. Mut. Aid Assn., 1900, 84 Mo. App., 605. Yotmg V. Railway Mail Assn., 1907, 126 Mo. App., 325; 103S. W., 557. 20 Beile v. Travelers Protective Assn. of Amer., 1911, 155 Mo. App., 629; 135 S. W., 497. Hooper v. Standard Life S Ace. Ins. Co., 1912, 166 Mo. App., 209; 148 S. W., 116. Gallagher v. Fid. & Gas. Go., 1914, New York, 163 Ap- pellate Division, 556; 148 N. Y. Supp., 1016. Bryant v. Continental Gas. Go., 1916, Texas; 182 S. W., 673. In the Smith case it appeared that the insured died from septicaemia • resulting from abrasion of the skin on his toe, caused by friction of a tight shoe. The court said in substance that an effect which is the natural and probable consequence of an act is not produced by accidental means, but that if it is not the natural or probable consequence and is not intended to be produced, it is caused by accidental means. It cites a num- ber of authorities laying down the correct rule in support of this erroneous conclusion. It is obvious that this conclusion is in conflict with those authorities holding that the unexpected result of a voluntary act, done in the way intended, is not due to accidental means. Here the insured intended to do exactly what he did, that is to put his foot in the shoe and place his toe in contact with same. As a consequence of this voluntary act, done in precisely the way the insured intended, an unex- pected and unfortunate result occurred which was clearly accidental, but could hardly be said to be due to accidental means. The case is pretty close to the border line and while the reasoning is unsound the conclusion may perhaps be made to come within the true rule under the somewhat hypercrit- ical and hair splitting theory that the insured did not intend that his toe should rub against the shoe, hence the accidental means, and neither did he intend that the rubbing should pro- duce the abrasion, hence the accidental result. In the Miller case the question was presented on demurrer to a declaration alleging that the insured had swallowed cer- tain hard, pointed, resistant substances of food, which sub- stances came in contact with his intestinal tissue in an acci- dental way, causing 'perforation and death. The court seems to have considered principally whether the means were ex- ternal and violent and to have assumed that they were acci- dental. The demurrer to the declaration was overruled. The decision is brief, unsatisfactory and without citation of au- thorities. Construing the declaration against the pleader it would seem that the insured voluntarily swallowed the hard 21 substances of food and that an unexpected and accidental re- sult followed. It is difficult to perceive any accidental means in this case, although, like the Smith case, it is close to the dividing line. In so far as the Smith and Miller cases are contrary to the correct rule, they are buried and rendered innocuous by the great weight of Federal authority already referred to in de- tail, which supports that rule. In the Robison case the Illinois Appellate Court reversed adjudgment against an accident company on the theory that there could be no recovery where disease antedating the acci- dent was a contributing cause in bringing about death. This case, therefore, squarely supports our position relative to the second branch of the insuring clause, which will be discussed in Chapter V. It appeared that the insured lifted a heavy stove, and, in so far as the opinion shows, did not slip or fall. The Appellate Court of Illinois, in a memorandum opinion, apparently without reference to any authority and without having had its attention called to the cases supporting our Proposition No. 1, seems to have assumed that an injury so occasioned would be considered as having been effected by accidental means. The case turned in favor of the company on another point, and, under the circumstances, it does not seem that the Illinois Appellate Court is at all committed to this doctrine. It wiU undoubtedly get right when its attention is directed to the long line of authorities laying down correct principles. A reference to the Missouri cases cited above will indicate that in the Summers case the Kansas City Court of Appeals arbitrarily, without discussion, disregarded the plain terms of the policy and held the company liable. The Hooper case is also out of line with correct principles. In the other two to-wit, the Young and Beile cases, the attention of the St. Louis Court of Appeals seems to have been called to author- ities laying down the correct rule, but the court simply re- fused to follow it. The Beile case can be distinguished on the ground that the insuring clause was not in the usual form, as it simply provided to pay death benefits "in case of death by accident." The decision is not, however, based upon this distinction. In this connection the recent case of Wright v. Order of United Commercial Travelers of America, St. Louis Court of Appeals, 1915, 188 Mo. App., 457; 174 S. W., 833, is of in- 22 terest. In that case the insured on a hot day was sawing a board, in a cramped position, and fell dead. No post mortem was held. There was expert testimony for the plaintiff to the effect that the unusual exertion caused the rupture of a blood vessel which in turn occasioned death. The court, while ap- parently approving the Missouri decisions just discussed, held that there was no evidence to justify a verdict for plain- tiff and that the expert testimony should not have been ad- mitted, saying that it was purely hypothetical as to whether there was any rupture of a blood vessel or other similar in- jury. It is apparently conceded by the court, however, that • had there been evidence of such an injury the fact that it was unexpected would have carried with it the l^gal inference that the voluntary means were accidental. The Gallagher ease involves the construction of a policy covering sunstroke effected by accidental means and will be discussed more at length in connection with the question of sunstroke under Proposition No. 12. The opinion of the court is based in a measure upon the construction of-certain alleged ambiguous terms of the policy. It must be conceded, however, that the court does seem to hold that a sunstroke occasioned by voluntary acts, accomplished in the way in- tended, is, if unexpected, to be considered as having been effected by accidental means. We believe that the court's holding to this effect was inadvertent as it relies upon the Barry case, 131 U. S., 100, heretofore frequently referred to, - ley Life Ins. Co., Gt Apps., Ky., 1868, 67 Ky., 535. Suicide and Intentionally Self-inflicted Injuries While Sane. Proposition No. 8. An injury intentionally self-inflicted by the insured upon himself while sane is not effected through accidental means. This statement is so palpably true as scarcely to require cita- tion of authority to support it, and we have not attempted to 37 gather together all of the authorities wherein it has been made. We call attention to the following: ^tna Life Ins. Co. v. Vandecar, 1898, 86 Fed., 282. Tuttle V. Iowa State Trav. Men's Assn., 1905, 132 la., 652; 104 N. W., 1131. Williams v. U. 8. Mut. Ace. Assn., 1892, 133 N. Y., 366; 31 N. E., 222, reversing 14 N. Y. Sup., 728. Suicide and Intentionally Self-inflicted Injuries While Insane. Proposition No. 9. In the absence of a provision in the policy excepting liability for suicide or injuries intentionally self-inflicted while insane, an injury inflicted by the insured upon himself while he is in- sane is effected through accidental means, even though the policy stipulates against liability for suicide or self-inflicted injuries. The following are the leading cases which support this well recognized proposition : Ace. Ins. Co. V. Crandall, 1887, 120 U. S., 527, affirm- ing 27 Fed., 40. Tuttle V. Iowa State Trav.*Men's Assn., 1905, 132 la., 652; 104 N. W., 1131. Blacitstone v. Standard Life S Ace. Ins. Co., 1889, 74 Mich., 592; 42 N. W., 156. Berger v. Pac. Mut. Life Ins. Co., 1898, 88 Fed., 241. Where, however, the policy contains a provision to the ef- fect that there shall be no liability where the death is caused by "suicide, sane or insane," many difficult and perplexing problems frequently arise in its construction. For some rea- son there are very few reported decisions considering the effect of this clause when contained in a policy of accident insurance, although the books are full of cases construing life insurance policies containing a -similar clause. The United States Supreme Court in the Crandall case, and the Michigan court in the Blackstone case, seem to assume that the reason- ing of these life insurance cases nfiay properly be applied in a case involving an accident policy. The same assumption is indulged by the courts who have had occasion to consider these questions in more recent years. There are two distinct lines of authority construing life insurance contracts providing for no liability where the in- sured shall die as the result of suicide "while sane or insane," 38 or the equivalent of that phrase. Under one line of authority a life insurance company is not liable under a policy of this character if the insured, because of insanity, is unconscious and unmindful of the moral character of his act, but is liable, in spite of the exception, if the insured is so insane as to be unconscious of the physical nature and consequences of his act, that is to say, that the same will produce death. The other line of authority holds that there is no liability under a life insurance policy of this character for death occasioned by suicide, no matter what the degree of insanity. As pointed out above, there are only a few reported cases where these questions have been decided in coimection with the construction of an accident insurance policy. There seems to be little question, however, that the courts generally con- sider that the life insurance cases are applicable and will fol- low, in accident eases, the particular line of authority which appears to them as being the more logical, or which, because of geographical location, is binding upon them. The following cases, construing accident policies providing for no liability in case of "suicide, sane or insane," have fol- lowed the first line of authorities mentioned above, to-wit, those holding that, notwithstanding the exception, the com- pany is liable if the insured is so insane as to be unconscious of the physical nature and consequences of his act, Streeter, Admr., v. West. Union Mut. Life Ace. Assn., 1887, 65 Mich., 199; 31 N. W., 779. Cady V. Fid. & Gas. Co., 1907, 134 Wis., 322: 113 N. W., 967. Vicars v. ^tnaLife, 1914, 158 Ky., 1 ; 164 S. W., 106. In the Streeter case the court, while apparently recogniz- ing the doctrine in support of which we have just cited it, concluded that there was no evidence to justify the jury in finding that the insured was so insane as to be unconscious of the physical character of his act. The Cady case is reported in 17 L. E. A. (N. S.), 260, and is there accompanied by exhaustive and valuable aimotations presenting very fully the authorities in support of both rules mentioned above. The author of the note concludes that the great weight of authority supports the second, namely, that the company is not liable no matter what the character of the insanity. In the Vicars case the court squarely laid down the doctrine 39 that notwithstanding the exception as to suicide, sane or insane, the company would be liable if the insured was so insane that he did not know he was taking his life or that the act he was committing would probably result in his death. In this connection, we call attention to a very interesting case recently decided by the same court, viz. : Interstate Business Men's Assn. v. Atkinson, 1915, 165 Ct. Apps. Ky., 532; 177 S. W., 254. The insurance company in this case had inserted a special clause in the policy suspending the insurance during such time as the insured might he insane. The Kentucky Court of Appeals held that this was a reasonable provision, and that under this particular policy the company would not b& liable for suicide while insane, irrespective of the character of the insanity. The leading cases considering this question in connection with the construction of an accident policy and holding that there is no' liability for suicide while insane, irrespective of the character of the insanity, are : Tuttle V, Iowa State Trav. Men's Assn., 1905, 132 la., 652; 104 N. W., 1131. Billings v. Ace. Ins. Co. of No. Amer., 1892, 64 Vt., 78; 24Atl., 656. In the Tuttle case the court recognized the proposition that except for the presence of the exception as to suicide "sane or insane," the company would have been liable, sajdng that if the insured's act causing death "sprung from an insane impulse of a disordered and unsound mind, it was neither voluntary- or intentional" but effected by accidental means. It then went on to point out that the contract excluded liability in case of death by "suicide while sane or insane" and con- cluded that this condition was valid. In the Billings case the court considered the life insurance cases on both sides of the question and held that the better rule is that there is no liability under the exception, even though the insured is dominated and controlled by an irre- sistible impulse and is mentally incapable of understanding and appreciating the physical nature and consequences of his act. See in this connection the case of Layton v. Interstate Bus. Men's Ace. Assn., Iowa, 1913, 139 N. W., 463, where the court seems to approve the rule last laid down. 40 An interesting and peculiar case, which perhaps has some little bearing upon the proposition just discussed, is Trav- elers Ins. Co. V. Melich, U. S. Cir. Ct. Apps., 1894, 65 Fed., 178. In this case it appeared that the insured accidentally shot himself in the foot. The wound became very painful and the insured, who was a physician, and his attending physician feared tetanus and used certain drugs in an effort to ward off this disease. Their efforts were futile, as the insured while alone in his room was seized with tetanus, which causes very excruciating pain. Shortly afterwards he was found dead in bed, having evidently cut his throat with a scalpel. The policy provided that it would not cover ' ' suicide sane or insane," and further provided that the company would not be liable if the accident or death resulted "wholly or partly . . . from . . . intentional injuries inflicted by the insured." The jury made a special finding that the shot wound was the proximate cause of the insured's death and the Court of Appeals said that therefore it was unnecessary to determine whether the knife cut was suicidal or accidental, since, under the finding of the jury, it was evident that the same did not cause the death. This case will be considered more fully in connection with questions presented in deter- mining when an injury may be regarded as the sole cause of death. Injuries Intentionally Inflicted Upon the Insured by Another Person. Proposition No. 10. When the insured receives an injury by the intentional act of another, and the insured is not at fault and does nothing calculated to bring about the assault, such injury is effected by accidental means. The courts seem to be uniform in hold- ing to this effect. The following are some of the leading cases : Travelers Ins. Co. v. McConkey, 1888, 127 TJ. S., 661 ; 8 Sup. Ct. Rep., 1360. Insured murdered by un- known person. Ripley v. Railway Pass. Assur. Co., 1870 Fed. Case No. 11854, affirmed in 1872, 16 Wal., 336. Insured murdered by robbers. Robinson v. U. S. Mut. Ace. Assn., 1895, 68 Fed., 825. Insured murdered by unknown person. Hutchcraft's Exs. v. Travelers Ins. Co., 1888, 87 Ky., 300 ; 8 S. W., 570. Insured murdered by robbers. 41 Fid. d Cas. Co. v. Johnson, 1895, 72 Miss., 333; 17 Sou., 2. Insured hanged by a mob. See, also, cases cited to Proposition No. 11. Injuries Intentionally Inflicted Upon the Insured by Another Person by Reason of the Insured's Own Misconduct. Proposition No. 11. Where the insured brings about an assault upon himself by his own wrongful act, or where he, under such circum- stances that he would "Naturally be presumed to know that the injury is likely to be inflicted, voluntarily incurs an obvious hazard of this character, or places himself in a position that may be reasonably expected to bring about an assault upon him, an injury so received is not effected by accidental means. TalUferro v. Trav. Pro. Assn. of America, 1897, 80 Fed., 368. Prvd. Cas. Co. v. Curry, 1914, 10 Ala. Apps., 642 65 Southern, 852. Price V. Occidental Life Ins. Co., 1915, 169 Cal., 800 147 Pac, 1175. Button V. States Ace. Ins. Co., 1915, 267 111., 267 108 N. E. 296, reversing same case 186 111. App. 499. Postler V. Travelers Ins. Co., 1916, Cal, ; 158 Pac, 1022. In the TalUferro case it appeared that the insured had had trouble with his wife and left her. He subsequently called at a place where she had been boarding and was directed by one Frith, the landlord, to leave the house, as he had been warned not to return. After some discussion the insured said to Frith, "You must not insult me," and then said, "I must have re- venge," and requested Frith "to put himself in shape," whereupon Frith pulled off his coat and the insured drew his pistol and struck him in the face. Frith then drew his own pistol and killed the insured. The court said that under the circumstances death could not be "regarded as accidental by any definition of that term which has heretofore been adopted," and concluded that the trial court was correct in directing verdict for defendant. In the Curry, Price, Button and Postler cases the doctrine 42 announced in the Talliferro case is approved and followed tinder similar circumstances. These five cases seem to be the only ones squarely in point in support of the foregoing proposition. It is, however, sup- ported more or less directly by the following : Robinson v. U. 8. Mut. Ace. Assn., 1895, 68 Fed., 825. State Life Ins. Co. v. Ford, 1912, 101 Ark., 513; 142 S. W., 863. Jones V. U. 8. Mut. Ace. Assn., 1894, 92 la., 652; 61 N. W., 485. Supreme Council Order of Chosen Friends v. Garri- gus, 1895, 104 Ind., 133; 3 N. E., 818. Phoenix Ace. & Sicic Bene. Assn. v. Stiver, 1908, 42 Ind. App., 636 ; 84 N. E., 772. Travelers Ins. Co. v. Wyness, 1899, 107 Ga., 584; 34 S. E., 113. Gaynor v. Travelers Ins. Co., 1913, 12 Ga. App., 601 ; 77 S. E., 1072. Hutchcraft's Exs. v. Travelers Ins. Co., 1888, 87 Ky., 300; 8S. W., 570. Campbell v. Fid. & Cas. Co., 1901, 109 Ky., 661; 60 S. W., 492. Furbush V7 Maryland Cas. Co., 1902, 131 Mich., 234; 91 N. "W"., 135 ; see same case 2nd appeal, 1903, 133 Mich., 479; 95 N. W., 551. Phelan v. Travelers Ins. Co., 1890, 38 Mo. Apps., 640. Lovelace v. Trav. Pro. Assn. of America, 18^4, 126 Mo., 104; 28S. W., 877. Collins V. Fid. S Cas. Co., 1895, 63 Mo. Apps., 253. Hester v. Fid. S Cas. Co., 1897, 69 Mo. Apps., 186. Railway Offs. d Emps. Ace. Assn. v. Drummond, 1898, 56 Neb., 235; 76 N. W., 562. Guildenkirch et al. v. U. 8. Mut. Ace. Assn., 1889. 5 N. T. Sup., 428. Erb V. Com. Mut. Ace. Assn., 1911, 232 Pa., 215 : 81 Atl., 207. Accident Ins. Co. of No. Amer. y.' Bennett, 1891. 90 Tenn., 256; 16 S. W., 723. Union Cas. <& Surety Co. v. Harrold, 1897, 98 Tenn.. 591; 40S.W.,1080. 43 Sunstroke and Freezing. Proposition No. 1 2. Where the insured comes to his death from sunstroke there is no liability under the usual form of accident policy, because sunstroke is a disease. If, however, the policy specially pro- vides to pay for sunstroke effected by accidental means, the usual rule applies. In such case it must appear that the ex- posure or "means," as well as the resultant sunstroke, is acci- dental. The bodily infirmity brought about by freezing is an injury. If the exposure to the cold is involuntary, then there is liability under the usual insuring clause. Otherwise the injury cannot be considered as having been effected by accidental means and there is no liability. Sinclair v. Maritime Pass. Assur. Co., England, 1861, 3 ElUs & Ellis, 478. Dozier v. Fid. & Gas. Co. of N. Y., 1891, 46 Fed., 446. Herdic v. Maryland Casualty Co., 1906, 146 Fed., 396 ; affirmed, 149 Fed., 198. Schmid v. Ind. Trav. Ace. Assn., 1908, 42 Ind. App., 483; 85 N. E., 1032. Feder v. la. State Trav. Men's Assn., 1899, 107 la., 538; 78N. W., 252. Bryant et al. v. Continental Casualty Co., 1912, Tex. Civ. App., 145 S. W., 636; reversed 1916, Texas Supreme Ct., 182 S. W., 673. Elsey V. Fid. & Cas. Co., 1915, Ind. ; 109 N. E., 413. Semancik v. Con. Cas. Co., 1914; 56 Pa. Superior Court Rpts., 392. Con. Cas. Co. v. Pittman, 1916, Ga. ; 89 S. E., 716. ' N. W. Com. Trav. Assn. v. London Guarantee Co.,- Canada, 1895 ; 10 Manitoba Law Eep., 537. Lenarick v. Nat 'I Cas. Co., Dis. Ct., St. Louis Co., Minn., January, 1912, reported Vol. 25, Ins. Law Journal (N. S.), p. 71. There is a very prevalent belief among laymen and lawyers generally that there is liability under an accident policy for death due to sunstroke, irrespective of the circumstances under which this affliction occurs. This may, perhaps, be ex- plained because the term itself carries with it the idea of violence in the nature of injury from a stroke or blow. As a 44 matter of fact the foregoing authorities establish that, as a legal proposition, at least, sunstroke is a disease in the nature of a brain fever produced by exposure to excessive heat, in the same sense that pneumonia is a disease engendered by ex- posure to cold, and in the same sense that many other maladies and ills to which human flesh is heir, occasioned more or less directly by exposure to the vicissitudes of climate or atmos- phere, are diseases. If then it be conceded, as it must necessarily be under the authorities, that the morbid bodily condition known as sun- stroke is a disease as distinguished from an injury, it follows that even though a fatal disease of this character is brought about by the happening of an accidental event, there is no liability under the usual insuring clause. The courts say that the anatomical lesions brought about by exposure to excessive heat are pathological rather than traumatic. In a case of sun- stroke, therefore, there is no element of bodily injury. It fol- lows that even in cases where a fatal attack of the disease of sunstroke is brought about by the happening of an accidental event, it cannot logically be said that death is occasioned solely by bodily injuries effected through accidental means. The first sunstroke cases decided by the courts involved the construction of policies which restricted liability to disability or death occasioned by injuries effected by accidental means. Since sunstroke is undoubtedly a disease there was, of course, no liability in these cases. It was unnecessary to determine whether the particular sunstroke was effected by accidental means or otherwise. The indispensable element of injury not being present, it was futile to inquire further as to whether the disease was effected by the happening of an accident. In the few sunstroke cases where claim was made under the general insuring clause, which the courts had occasion to consider, a correct decision was rendered, to-wit, that the company was not liable. In these cases, as will subsequently appear, the courts held unqualifiedly that sunstroke is a dis- ease, and having so correctly held, they did, in one or two instances, go further, and by way of obiter statements intimate that there would have been liability had the sunstroke been effected by accidental means. These intimations were, of course, gratuitous, and were undoubtedly made inadvertently. Having once held that sunstroke is a disease, it requires no argument to demonstrate that it would be entirely illogical to hold the company liable for sunstroke under a policy covering 45 only loss resulting from injury. In any event, in the eases just referred to, the conclusion of non-liability was correct, and they held uniformly that sunstroke is a disease. In considering the question of sunstroke, therefore, it may be laid down as a basic proposition that there is no liability for loss resulting from sunstroke under the usual insuring clause of an accident policy, any more than there would be liability for loss resulting from pneimionia , or tuberculosis occasioned by exposure to inclement weather. In recent years, however, many of the companies have in- serted in their policies a special clause providing that the company will pay for death occasioned by sunstroke if the sunstroke be effected by accidental means. In other words, the companies have contracted to pay for loss occasioned by a well recognized disease if such disease be effected by the happening of an accidental event. Such action on the part of the companies is, of course, entirely illogical. They might just as well agree to pay for death occasioned by smallpox, in the event that such disease be contracted by an involuntary exposure. By giving this special coverage for disease in an accident policy, which is primarily intended to cover only loss resulting from a bodily injury, the companies have gone be- yond the proper limits of this character of insurance. It is true that they have restricted this coverage of loss re- sulting from a disease to cases where the disease is effected by accidental means ; that is to say, to cases where the exposure is brought about against the will of the insured. A sunstroke can only be considered to be effected by accidental means in those exceptional cases where it appears that some accidental event has occurred, and, as a result thereof, the insured has been exposed to the heat of the sun in a way not intended. There must be an element of accident in the means bringing about the exposure. Inasmuch as it is only rarely that a sunstroke is effected in this manner, the courts which have had occasion to construe policies containing this special sun- stroke clause have been impressed with its misleading char- acter, and, while they have in almost every instance held for the company, they have done so reluctantly. In one or two instances they have taken the bit in their teeth and held the companies liable, the clear wording of the contract to the con- trary notAvithstanding. There is grave danger that in the future, particularly in cases which are not properly presented and argued, the courts may fall into error and follow these 46 authorities even in cases where liability is claimed under the general insuring clause. Therefore, the companies would do well if they would eliminate from their policies, designed to cover only loss occasioned by a bodily injury, this special clause providing to pay for loss occasioned by a disease. These cases must not be confused with those cases where it has been held that death from disease is covered under the usual form of accident policy when such disease is itself occa- sioned by a bodily injury effected by accidental means. As will appear in a subsequent portion of this brief, there is liability in cases of the character just described. For illustra- tion, suppose a case where the insured accidentally cuts him- self. Clearly he has received a bodily injury effected by acci- dental means. If an infection follows and the insured dies from the disease of septicaemia, the bodily injury is regarded as the cause of death and the infection as only a link in the chain of causation. In an ordinary sunstroke case, however, the disease itself is the cause of death and no element of bodily injury is present. The abnormal condition occasioned by exposure to excessive cold and generally termed "freezing," is, without doubt, to be considered as a bodily injury. In the few cases where the question has been presented, the courts have so held. In other words, there is liability for loss resulting from freezing Tinder the usual insuring clause of an accident policy if it appears that the exposure to the cold has been brought about involuntarily in so far as the insured is concerned; that is to say, by accidental means. Some of the modern policies in the special sunstroke clause above referred to provide also to pay for loss resulting from freezing if the freezing is effected by accidental means. As a matter of fact, this special clause adds nothing at all to the general insuring clause. Under the general insuring clause there is liability for the result of injury effected by accidental means. Conceding that freezing is an injury, there is, therefore, liability under the insuring clause if the exposure to the cold is brought about by the hap- pening of sonae accidental event and the situation, in so far as the liability of the company for loss resulting from freezing is concerned, is precisely the same, irrespective of whether the special freezing clause is included in the policy. We shall now proceed to consider the sunstroke and freez- ing cases cited in support of Proposition No. 12. In the Sinclair case the policy construed insured against 47 "any personal injury from, or by reason or in consequence of, any accident which should happen * * * upon any ocean, sea, river or lake." The insured was master of a ship and while in the usual course of his vocation was stricken by sunstroke from which he died. The court held that disease or death engendered by exposure to heat, cold, dampness, the vicissitudes of climate or atmospheric influences cannot be said to be accidental unless the exposure is brought about by circumstances giving it the character of an accident. It sug- gested that if a man exposed to the elements should catch cold and die, the death would not be accidental, although if ship- wreck or other disaster necessitated the exposure, then death might properly be held to be the result of accident; that in one sense any disease is accidental, but that a disease not brought about by some fortuitous and unexpected circum- stance is not considered as accidental. Under the insuring clause the conclusion of the court is clearly correct. The argument, however, is scarcely logical, since the court said that a disease not brought about by a fortuitous and unexpected circumstance, is not considered as accidental. The court recognized that in one sense such a disease is accidental, and we have already pointed out that under the accepted definitions of that term any disease is accidental unless intentionally contracted. As a matter of fact, the policy did not provide to pay for accidental disease and it was not necessary for the court to de- termine whether the disease of sunstroke, from which the insured suffered, was accidental or not. The policy pro- vided to pay for loss brought about by an injury occasioned ' ' in consequence of any accident. ' ' The court might well have concluded that there was no injury, and hence that there was no liability. Such conclusion would be, as we have already pointed out, the logical one. It could also, as other courts have frequently done, have ignored this question and decided the case in favor of the company without determining whether the physical condition brought about by the exposure to the sun was a disease or an injury, because it was evident that what- ever that condition was, and even though it was accidental, it did not result "in consequence of any accident." 'T!n the Bozier case the policy insured against death re- sulting from "bodily injuries sustained through ... ac- cidental means." The plaintiff alleged in her petition that the insured while pursuing his ordinary occupation as a su- 48 pervising arcliitect came to his death "by sunstroke or heat prostration. ' ' The court in sustaining a demurrer to the peti- tion relied upon the Sinclair case and quoted from it in ex- tenso. Incidentally it approved of a statement made in the Sinclair case to the effect that a disease produced by a known cause cannot be considered as accidental. This statement, as pointed out in the preceding paragraph, is incorrect, since a disease is usually accidental within the commonly accepted definitions of that term. Further than this, considering the question aside from the definitions of the term accident and in the light of the reported decisions, it is obvious that there are many cases where there is liability under an accident policy where a man dies from disease produced by a known cause. For instance, if an insured falls down and cuts his leg and septicaemia sets in, causing death, the company is liable, yet in such a case the disease is certainly produced by a known cause. The conclusion of the court is clearly correct and much of its argument is sound. Among other things it demonstrates very conclusively that sunstroke is a disease.. The flaw in the decision arises because of the failure of the court to ap- preciate the true meaning of the insuring clause. As in the Sinclair case the court might well have arrived at the same conclusion on the theory that there was no evidence of injury at all, or it might even have ignored this question and sus- tained the demurrer because there was no allegation in the petition that the sunstroke, whether it be considered as a disease or an injury, was "sustained through . . . acci- dental means." In the Bryant ease the policy contained a special clause to the effect that it would pay death indemnity for sunstroke if such sunstroke should be produced by "external, violent and accidental means." The parties stipulated that the in- sured, a bill coUeeter, walked about the streets of Houston, made more collections than usual and was overcome by the heat of the sun whiph was more intense than usual and there- by suffered a sunstroke which caused death independently of all other causes. The lower court and the Court of Appeals both held that there was no liability. The conclusion is clearly correct since the sunstroke, though accidental, was not brought about by any accidental means. That the decisions of the trial court and the Court of Appeals in the Bryant case 49 were correct has been expressly recognized in cases involving the construction of the same policy under similar facts. See Semancik v. Con. Cas. Co., 1914, 56 Pa. Superior Court Eeports, 392. Elsey V. Fid. & Cas. Co., 1915, Ind.; 109 N. E., 413. Con. Cas. Co. v. Pittman, 1916, Ga.; 89 S. E., 716. Notwithstanding this general approval of the decision of the Court of Appeals, the Supreme Court of Texas has re- cently reversed the decision. See Bryant v. Con. Cas. Co., 1916, Texas; 182 S. W., 673. The decision of the Supreme Court in this case is very long, involved and in many respects contradictory. The Court relies very strongly on the Barry case {Barry v. U. S. Mut. Ace. Assn., U. S. Cir. Ct., 1885, 23 Fed. Rep., 712; af- firmed in U. 8. Mut. Ace. Assn. v. Barry, U. S. Sup. Ct., 1889 ; 131 IT. S., 100) in support of its apparent conclusion that a result effected by non-accidental means, if such result is acci- dental,' must be considered as having been effected by acci- dental means. A careful reading of the decision of the United States Supreme Court in the Barry case and the instructions given by the court below, which were approved by the Su- preme Court, will demonstrate that not only does it not support the conclusion of the Texas Supreme Court, but, on the contrary, lays down a doctrine directly inconsistent therewith. In the Semancik case it appeared that the insured, a coni- mon laborer, while performing his usual duties in the ordi- nary way was overcome by sunstroke and died. The policy involved was precisely the same as that construed by the Texas court in the Bryant ease. The Superior Court of Penn- sylvania, relying largely upon the decision of the Court of Appeals in the Bryant case, approved the holding of the lower court to the effect that the company was under no liability. In the Elsey case it appeared that the insured took a street car ride on a very hot day and suffered a sunstroke, which sunstroke was, of course, accidental. The policy, however, only covered sunstroke effected by accidental means. The court followed the doctrine laid down by the Texas Court of 50 Appeals in the Bryant case and by the Indiana court in the Schmid case, and held that there was no liability. In the Pittman case it appeared that the insured, whUe firing a locomotive on a very hot day, suffered heat prostra- tion and consequent death. The policy involved was the same as that construed in the Bryant and Semancih cases. The Supreme Court of Georgia, relying upon the holding of the Texas Court of Appeals in the Bryant case, reversed judgment rendered by the court below for the plaintiff, hold- ing that under these facts it was apparent that as a matter of law the sunstroke was not effected by accidental means and the company was not liable. In this connection we call attention to the case of Gallagher V. Fid. & Gas. Go., New York, 1914, 163 App. Div., 556; 148 N. Y. Supp., 1016, where the court arrived at a contrary con- clusion. In this case the policy under construction was sub- stantially identical with that involved in the three cases we have just discussed. The New York court, under similar facts, concluded that the company was liable on the theory that the resultant sunstroke, being accidental, it must be held, notwithstanding the non-accidental character of the means bringing it about, that such means were accidental. In sup- port of its conclusion the New York court also relied strongly upon the United States Supreme Court decision in the Barry case. In so doing it entirely misapprehended the effect of that decision. A reference to it will disclose that in that case the insured jumped from a platform to the ground and there was evidence indicating that in so doing he got into an unexpected position and alighted heavily on his heels in a manner that he did not intend, thus receiving an injury. Both the means and the result were clearly acci- dental and the Supreme Court of the United States properly so held. In this connection, however, the court expressly laid down the doctrine that if the insured had jumped in the manner that he intended and alighted in the way that he ex- pected, the resultant accidental injury could not be considered as having been effected by accidental means. Appeal has been taken from the decision of the New York court In the Gallagher case to the court of last resort, where it is now pending. Inasmuch as the New Jork Court of Appeals is already committed to the doctrine for which we are contend- ing, it would seem that the decision of the lower court should 51 be reversed. In support of the statement that the Court of Appeals is committed to this doctrine, we call attention to Appel V. ^tna Life Ins. Co., 1903; 83 N. Y. Sup., 238; affirmed, 180 N. Y., 514. See, also, Niskern v. United Brotherhood of C. & J. of America^, 1904, 87 N. Y. Sup., 640. ^ In the case of P