OPINION
COMSTOCK, J.
Action
by appellant against appellee upon a contract of insurance
issued by appellee to B. Frank Schmid, in which appellee
agreed, with certain exceptions, that should said Schmid
sustain a bodily injury through external, violent and
accidental means, which injury should result in death
appellee would be liable to Schmid's beneficiaries in a
certain sum.
Appellant in her complaint sets out Schmid's death, and
the cause thereof, together with certain facts and
circumstances connected therewith, and claims that such
death, upon the showing of such allegations, was a death from
injuries sustained through external, violent and accidental
means, and that appellee was liable therefor under the terms
of its contract.
Appellee
demurred to said complaint, upon the ground that the same did
not state facts sufficient to constitute a cause of action,
which demurrer the court sustained, and appellant refusing to
plead further, judgment was rendered against her for costs.
The correctness of the ruling of the court is the only error
assigned.
The
policy, and the application and by-laws of the association,
which are made a part thereof, are set forth as exhibits to
the complaint. So far as material to the solution of the
legal questions presented, the provisions of such policy are
as follows:
"No
claim of any character shall ever accrue upon this contract,
unless it arises from physical bodily injury, through
external, violent and accidental means, while this contract
is in force, and then only when the injury shall,
independently of all other causes, immediately and wholly
disable the insured from performing any and every kind of
business pertaining to his occupation as above stated. * * *
This certificate of insurance does not cover injuries nor
death for which there is no visible mark upon the body of the
insured; nor death nor injury from any of the following
causes: disease or bodily infirmity, or acts committed by the
insured, while under mental aberration,
fits, insanity, rupture, vertigo, walking in sleep,
narcotics, intoxication, surgical treatment, sun-stroke,
freezing, voluntarily taking poison, handling or using
dynamite or other explosives, riots or war, quarreling,
dueling, wrestling, fighting, gymnastic sports, voluntary
exposure to unnecessary danger, injury resulting from the
intentional act of the insured or other persons, or received
while engaged in any unlawful act, or while in any gambling
house, or house of ill-fame, or house of assignation, or any
place prohibited by law; nor shall it cover suicide, whether
the person is sane or insane."
The
following are the allegations of the complaint with reference
to the manner of Schmid's death: "The plaintiff
further says, that on or about December 27, 1905, while said
policy was in full force and effect, said B. Frank Schmid was
killed by external, violent, and accidental means, in the
manner following: That up to and prior to said date last
named, and for a long time anterior thereto, said B. Frank
Schmid was a resident of the city of Indianapolis, and a
citizen of, and domiciled in, the State of Indiana; that said
city last named is located about seven hundred feet above
sea-level; that a few days prior to December 27, 1905, said
Schmid left Indianapolis on a journey to Colorado Springs, in
the state of Colorado, on business, and traveled by railway
directly from Indianapolis to Colorado Springs; that said
city of Colorado Springs is about six thousand feet above the
sea-level; that said journey covered -- hours, and was
tedious and confining; that said Schmid, at the time, was
over fifty years of age; that he arrived at said Colorado
Springs on the evening of December 27, 1905; that he left the
railway station, carrying in each hand a traveling bag or
satchel; that he went directly to the Antlers hotel in said
city of Colorado Springs, said hotel being located on an
elevation in said city; that said Schmid, in going to said
hotel from the train and station, ascended a flight of one
hundred steps leading to said hotel, being the usual method
of approach by pedestrians; that he walked from the top of
said steps into the lobby of said hotel;
that immediately after entering the hotel he suddenly fell
forward to the floor, and expired in a few moments; that the
death of said Schmid was due to the circulatory failure and
paralysis of the heart, caused by the high altitude and
unusual strain on the heart, occasioned by the muscular
exertion in climbing said steps, under such circumstances, in
such a rarefied atmosphere; that said circulatory failure and
paralysis of the heart, which resulted in Schmid's death,
would not have occurred under ordinary circumstances; that
said Schmid's heart was sound, to the extent that it
would have proved adequate and sufficient under ordinary
circumstances, for many years; that said circulatory failure
or paralysis of the heart was caused solely by the unusual
and extraordinary strain to which it was subjected, as a
result of climbing said steps, while carrying said satchels,
which were of considerable weight, combined with the effect
of such rarefied atmosphere, to which said Schmid was
unaccustomed. Plaintiff further says that upon the occurrence
of said circulatory failure or paralysis of the heart, as
aforesaid, and prior to his death, there appeared upon the
face of Schmid a marked and unusual pallor, and thereupon
said Schmid fell, as aforesaid, to the floor of said hotel;
that in falling said Schmid struck his head violently against
the floor, causing a cut or laceration upon his forehead;
that the death of said Schmid occurred several moments after
said fall; that said fall and the violent striking of his
head against the floor, as aforesaid, contributed to cause
his death; that said death resulted from the combined effect
of circulatory failure or paralysis of the heart, and the
violent striking of his head against said floor, as the
result of said fall, as hereinbefore set forth." It is
further alleged that timely and due notice of and the
particulars of Schmid's death were given, and that
appellee denied liability;
that the beneficiaries named in the policy were the minor
children of said Schmid, and that appellant is their
guardian.
The
question for determination is whether the death of Schmid was the result of accidental means
within the provision of the policy. It is claimed by
appellant, that where "the performance of intentional
acts is followed by a result which is not the natural and
probable consequence of those acts; that where the result is
altogether out of the ordinary, and could not reasonably have
been anticipated or expected, such a result is regarded as
having taken place by accidental means; that the present case
is clearly one of the latter class; that Schmid's death
resulted from heart paralysis, occasioned by a strain upon
the heart, which was the altogether unusual and unexpected
result of muscular exertion, under the circumstances
described in the complaint; that neither the strain upon the
heart, nor heart paralysis, was the natural or probable
consequence of such exertion; that such results could not
reasonably have been anticipated or expected--hence the death
must be regarded as accidental." Horsfall v
Pacific Mut. Life Ins. Co. (1903), 32 Wash. 132, 72
P. 1028, 63 L. R. A. 425, 98 Am. St. 846; Rustin v.
Standard Life, etc., Ins. Co. (1899), 58 Neb. 792,
79 N.W. 712, 46 L. R. A. 253, 76 Am. St. 136; Martin
v. Travelers Ins. Co. (1859), 1 Fost. & Fin.
505; Atlantic Accident Assn. v. Alexander
(1898), 104 Ga. 709, 30 S.E. 939, 42 L. R. A. 188;
Rodey v. Travelers' Ins. Co. (1886), 3
Johnson (N. Mex.) 316, 9 P. 348; Miller v.
Fidelity & Casualty Co. (1899), 97 F. 836;
Western Commercial, etc., Assn. v. Smith
(1898), 85 F. 401, 29 C. C. A. 223, 40 L. R. A. 653;
United States Mut. Accident Assn. v. Barry
(1889), 131 U.S. 100, 9 S.Ct. 755, 33 L.Ed. 60;
Bailey v. Interstate Casualty Co. (1896),
40 N.Y.S. 513; American Accident Co. v.
Reigart (1893), 94 Ky. 547, 23 S.W. 191, 21 L. R. A.
651, 42 Am. St. 374; Hamlyn v. Crown, etc., Ins.
Co., [1893] 1 QB 750. In the first case just mentioned,
the insured in lifting a weight, while in a difficult
position, strained the muscles of his heart, causing a
violent dilation of the heart, from which he died. The court
held that the injury was the result of an accident within the
meaning of the policy. This holding is
based on the reason stated as follows: "The policy
insured the deceased against the effect of bodily injuries
caused solely by external, violent, and accidental
means.' Death by accident is defined to be death from any
unexpected event, which happens as by chance, or which does
not take place according to the usual course of things.'
So a strain of the muscles of the back, caused by lifting
heavy weights in the course of business, is injury by
accident or violence occasioned by external or material
causes operating on the person of the insured.' 2 May,
Insurance (4th ed.), § 514; United States Mut.
Accident Assn. v. Barry [1889], 131 U.S. 100, 9
S.Ct. 755, 33 L.Ed. 60; North American, etc., Ins.
Co. v. Burroughs [1871], 69 Pa. 43, 51, 8 Am.
Rep. 212; 1 Cyc., 248, and cases cited." In 2 May,
Insurance (4th ed.), § 514, the definition of the word
"accident," fails to make any...
