A certificate or policy issued by a Mutual Accident Association
stated that it accepted B. as a member in division AA of the
association; "the principal sum represented by the payment of two
dollars by each member in division AA," not exceeding $5,000, to be
paid to the wife of B. in 6O days after proof of his death, from
sustaining "bodily injuries effected through external violent and
accidental means." B. and two other persons jumped from a platform
four or five feet high to the ground, they jumping safely and he
jumping last. He soon appeared ill, and vomited, and could retain
nothing on his stomach, and passed nothing but decomposed blood and
mucus and died nine days afterwards. In a suit by the widow to
recover the $5,000, the complaint averred that the jar from the
jump produced a stricture of the duodenum, from the effects of
which death ensued. At the time of the death, the association could
have levied a two dollar assessment on 4,803 members in division
AA.
Held:
(1) It was not error in the court to refuse to direct the jury
to find a special verdict, as provided by the statute of the
state.
(2) The issue raised by the complaint as to the particular cause
of death was fairly presented to the jury.
(3) The jury were at liberty to find that the injury resulted
from an accident.
(4) The policy did not contract to make an assessment, nor make
the payment of any sum contingent on an assessment or on its
collection, and the association took the risk of those who should
not pay.
This was an action at law brought in the County Court of
Milwaukee County in the State of Wisconsin by Theresa A. Barry, a
citizen of Wisconsin, against the United States Mutual Accident
Association, a New York corporation, to recover $5,000, with
interest thereon at seven percent per annum from July 15, 1883, on
a policy of insurance issued by the defendant on June 23, 1882. The
case, after answer, was removed by the defendant into the Circuit
Court of the United
Page 131 U. S. 101
States for the Eastern District of Wisconsin. The material parts
of the policy are set forth in the margin. [
Footnote 1]
The complaint, after setting forth the terms of the policy, and
averring that it was delivered by the defendant to John S. Barry,
alleged
"that on or about the 20th day of June, 1883, and while said
policy was in full force and effect at the town or village of Iron
Mountain, in the State of Michigan, and while the said John S.
Barry was attending to the duties of his profession, to-wit, that
of a physician, and wholly without his fault, it became necessary
for him to step or jump from
Page 131 U. S. 102
a platform or walk to the ground beneath, about four feet
downwards, and, in doing so, and in alighting upon said ground, he
unexpectedly received an accidental jar and sudden wrenching of his
body, caused by said jump or step downward, and by coming in
contact with the said ground beneath, as aforesaid, all of which
was unexpected on his part, and wholly without his fault or
negligence; that the said jarring of his person and wrenching of
his body, caused as aforesaid, was the immediate cause of, and
directly produced, a stricture of the duodenum, from the effects of
which the said John S. Barry continued to grow worse until, on the
29th day of June, 1883, he, on account of the same, died."
Issue was joined, and the case was tried by a jury, whose
verdict was that they found the issue in favor of the plaintiff,
and assessed the damages to her at the sum of $5,779.70, and a
judgment was entered for her for that amount, and $189.35 costs,
being a total of $5,969.05. To review this judgment the defendant
has brought a writ of error.
At the trial, the plaintiff offered in evidence the policy or
certificate, to which offer the defendant objected for the reason
that the complaint did not state facts sufficient to constitute a
cause of action. The objection was overruled, and the defendant
excepted. The defendant objected also that the complaint alleged no
assessment, and the court received the evidence subject to the
objection. The plaintiff then proved, without objection, by the
secretary of the defendant that on the 23d of June, 1882, there
were 804 members in division AA in the association, and on the same
day in 1883, 4,803 members, and on the same day in 1884, 5,626;
that during June and July, 1883, the defendant, in case of a death
in division AA, could have levied a two-dollar assessment on at
least 4,803 members, that number being then insured in that
division; that the only members who were exempt from the two-dollar
death assessment were those who became members subsequent to the
death for which the assessment was made; that if the defendant had
desired to pay the loss occasioned by the death of Barry, the
amount to be paid would have been $5,000; that the assessment
levied next prior to June 29,
Page 131 U. S. 103
1883, was levied June 1, 1883; that if at the time a death was
reported and a claim was proved, there were sufficient funds to the
credit of division AA, the loss was paid from those funds without
making a specific assessment; that if there were not sufficient
funds at that time, an assessment was made, and that on June 29,
1883, the defendant had on hand, belonging to class AA, $2,060.15.
The witness then produced the bylaws of the defendant for 1882-83,
the material parts of which are set forth in the margin. [
Footnote 2]
In the proofs of death furnished to the defendant was the
following, in the evidence of the attending physician: "12th. What
was the precise nature of the injury, and its extent? Inflammation
of the duodenum, from jarring, (jump)."
The plaintiff's husband was a physician, 30 years of age at the
time of his death. He was at the time of the injury strong and
robust, weighing from 160 to 175 pounds, about six feet high, and
in good health. With two other physicians, Dr. Crowell and Dr.
Hirschmann, he visited a patient on June 20, 1883, who lived in a
house behind a drugstore. On coming out of the house, they were on
a platform which was between four and five feet from the ground,
and if they got off from the platform, it was but a short distance
to the back part of the drugstore, where they desired to go. The
other two
Page 131 U. S. 104
jumped from the platform first, and alighted all right. Dr.
Hirschmann testifies:
"Just after we had jumped, Dr. Barry jumped, and he came down so
heavy that it attracted our attention, and we both turned around,
and we both remarked that it was a heavy jump, and I asked him,
'Doctor, are you hurt?' and he said, 'No; not much.' I have an
indistinct recollection of his leaning against the platform when he
jumped, but not sufficiently to state positively. If I were to
jump, I would jump and strike on my toes, and, if I had any
distance to jump, would allow my knees to give. The way Dr. Barry
came down, it sounded to us as if he came down solid, on his heels,
so much so that we both turned around and remarked, 'Doctor, you
came down heavily.' And I asked him, 'Are you hurt?' and he said,
'No; not much.' I heard the noise. It was a singular jump, and
sounded like an inert body. We then went with him to the
drugstore."
Hirschmann drove home with him. He appeared ill on the way, and
when he arrived home was distressed in his stomach, and vomited,
and from that time on retained nothing on his stomach, and passed
nothing but decomposed blood and mucus, and died nine days
afterwards. There was much conflicting testimony as to the cause of
death, and as to whether it resulted from duodenitis, or a
stricture of the duodenum, as alleged in the complaint, and from an
injury caused by the jump. The issues presented to the jury
sufficiently appear from the charge of the court.
At the close of the evidence on both sides, all of which is set
forth in the bill of exceptions, the defendant moved the court to
direct a verdict for it on the ground that there was no evidence to
sustain a cause of action. The motion was denied, and the defendant
excepted.
The plaintiff then, by leave of the court, amended her complaint
by alleging that at the time of Dr. Barry's death, and from that
time, and for the balance of the year 1883, and including the time,
as provided for in the policy, in which the said insurance was to
be paid to the plaintiff herein, there were insured by it in class
AA, the same class in which said Dr. Barry was at the time insured,
4,803 members or persons
Page 131 U. S. 105
upon whom the defendant could have levied an assessment, under
its bylaws and rules, of the two dollars per head, making an amount
exceeding the plaintiff's claim of $5,000. This amendment was
objected to, but the defendant took no exception.
The defendant then demanded that the court submit a special
verdict in the case, as provided by the rules of practice in the
State of Wisconsin, and, as a question upon such special verdict,
requested the court to submit the following question: "Whether the
death of Dr. Barry was caused by duodenitis?" The demand was
refused, and the defendant excepted. The defendant then asked the
court to submit, in connection with the general verdict, the
special question as to whether the assured died of duodenitis. The
request was refused, and the defendant excepted. The defendant then
requested the court to charge the jury as follows:
"It appears from the evidence in this case that by the policy in
suit the defendant company accepted John S. Barry as a member of
class AA, and in effect agreed to levy an assessment of two dollars
upon each member of said class, and to pay the same to the
plaintiff, if said John S. Barry should die of bodily injuries
effected through external, violent, and accidental means, but in no
event to pay more than $5,000. Before the plaintiff can recover in
this case, she must show that the defendant, when it received the
proof of death, on or about July 15, 1883, either had cash on hand
belonging to class AA, or levied an assessment upon the members,
and by that means the defendant received money which belonged to
class AA. By the evidence in suit, it appears that there were over
4,000 members belonging to class AA during the months of June and
July, 1883, who were subject to assessment of two dollars per man,
and that, on June 1, 1883, an assessment was made upon members
belonging to class AA, and that on June 29, 1883, the defendant had
on hand $2,060.15 belonging to class AA, and that an assessment was
then pending and in process of collection. This evidence does not
show any cash on hand belonging to class AA on July 15th, or at any
later date, nor is there any other evidence in the case
Page 131 U. S. 106
which would show that fact or that any assessment was levied.
Therefore the plaintiff cannot recover in this action, and you are
instructed to return a verdict for the defendant. The court refused
to give this instruction, and the defendant excepted."
The defendant then separately requested the court to charge the
jury to find for the defendant because no accident within the true
intent and meaning of the policy occurred to Dr. Barry, and that he
did not die from duodenitis, and that they must find for the
defendant if he, in jumping, alighted squarely on his feet, or if
they found that the jump did not result in the obstruction or
occlusion of the duodenum, and that there was no evidence of any
wrenching, twisting, or straining of the body in the jumping, and
that, considering the character of the injury alleged in the case
and the difficulty attending its proper investigation, great weight
should be given by the jury to the opinion of scientific witnesses
accustomed to investigate the causes and effects of injury to the
alimentary canal, and a distinction should be made in favor of the
opinion of those accustomed to use the most perfect instruments and
processes, and who are acquainted with the most recent discoveries
in science and the most perfect methods of treatment and in
estigation.
The court refused to give these instructions severally, and the
defendant excepted to such refusal.
The defendant also separately requested the court to charge the
jury that their verdict must be for the defendant if they found
that the alleged injury was not sustained by Dr. Barry, or that the
injury was not effected through violent means, or through
accidental means, or through external means, or that death occurred
directly or indirectly in consequence of disease or bodily
infirmity, or partly or wholly from disease, or not from
duodenitis, and that they were not at liberty to speculate as to
what occurred in the jump, but must be governed by the evidence of
witnesses on the trial.
The court refused to give these instructions severally, except
as contained in its general charge, and the defendant excepted to
each refusal. This makes it necessary to set forth the parts of the
charge to the jury which are involved in the several
Page 131 U. S. 107
requests. They are as follows, and the defendant excepted at the
time separately to each part which is contained in brackets:
"By the terms of the certificate, it was provided that, to
entitle the beneficiary to the sum of five thousand dollars, the
death should be occasioned by bodily injuries alone, effected
through external, violent, and accidental means; also that the
benefits of the insurance should not extend to any injury of which
there was no external and visible sign, nor to any injury happening
directly or indirectly in consequence of disease, nor to any death
or disability caused wholly or in part by bodily infirmities or
disease existing prior or subsequent to the date of the
certificate, nor to any case except where the injury was the
proximate or sole cause of the disability or death."
"The issue between the parties may be briefly stated. It is
claimed by the plaintiff that on the occasion mentioned by Dr.
Hirschmann, when the deceased was at Iron Mountain, he sustained an
injury by jumping from a platform to the ground; that this injury
was effected by such means as are mentioned in the certificate;
that the deceased, at the time of the alleged accident, was in
sound physical condition, and in robust health, and that the
alleged injury was the proximate and sole cause of death."
"The defendant, on the other hand, denies that the deceased
sustained any injury that was effected through accidental means,
and also contends that, if any injury was sustained, it was one of
which there was no external or visible sign within the meaning of
the policy, and that the supposed injury was not the cause of the
death of the deceased, but that he died from natural causes. The
case therefore resolves itself into three points of inquiry:"
"First. Did Dr. Barry sustain internal injury by him jump from
the platform on the occasion testified to by Dr. Hirschmann?"
"Second. If he did sustain injury as alleged, was it effected
through external, violent, and accidental means within the sense
and meaning of this certificate, and was it an injury of which
there was an external and visible sign? "
Page 131 U. S. 108
"Third. If he was injured as claimed, was that injury the
proximate cause of his death? To entitle the plaintiff to a
verdict, each and all of these questions must be answered by you in
the affirmative, and if, under the testimony, either one of them
must be negatively answered, then your verdict must be for the
defendant."
"[The first question (
viz., was the deceased, Dr.
Barry, injured by jumping from the platform?) is so entirely a
question of fact, to be determined upon the testimony, that the
court must submit it, without discussion, to your determination. In
passing upon the question, you will consider all the circumstances
of the occurrence as laid before you in the testimony; the apparent
previous physical condition of Dr. Barry; the subsequent
occurrences and circumstances tending to show the change in his
condition; the relation in time which the first developments of any
trouble bore to the time when he jumped from the platform; the
nature of his last sickness, and the symptoms disclosed in its
progress and termination.]"
"Further, you will inquire what evidence, if any, did the post
mortem examination, and any and all subsequent examinations, of the
parts alleged to have been the seat of the supposed injury furnish
of an actual physical injury; [what connection, if any, does there
or does there not appear to be between the act of jumping from the
platform and the subsequent events and circumstances which
culminated in death, including the result, as you shall find it to
be, of the post mortem investigations. The question is before you
in the light of all proven facts, for determination. The court
cannot indicate any opinion upon it without invading your exclusive
province, and by your ascertainment of the facts the parties must
be bound.]"
"[There is presented in the case a train of circumstances. Do
they or not, so to speak, form a chain connecting the ultimate
result with such a previous cause as is alleged? Was the act of
jumping from the platform adequate or inadequate to produce an
internal injury? Thus, you may properly pursue the inquiry, guided
by and keeping within the limits of the testimony.] "
Page 131 U. S. 109
"If you find that injury was sustained, then the next question
is: was it effected through external, violent, and accidental
means? This is a pivotal point in the case, and therefore vitally
important. The means must have been external, violent, and
accidental. Did an accident incur in the means through which the
alleged bodily injury was effected?"
"[The jumping off the platform was the means by which the
injury, if any was sustained, was caused.]"
"[Now was there anything accidental, unforeseen, involuntary,
unexpected, in the act of jumping, from the time the deceased left
the platform until he alighted on the ground?]"
"[The term 'accidental' is here used in its ordinary, popular
sense, and in that sense it means 'happening by chance;
unexpectedly taking place; not according to the usual course of
things,' or not as expected.]"
"[In other words, if a result is such as follows from ordinary
means, voluntarily employed, in a not unusual or unexpected way,
then, I suppose, it cannot be called a result effected by
accidental means.]"
"[But if in the act which precedes the injury something
unforeseen, unexpected, unusual, occurs, which produces the injury,
then the injury has resulted from the accident, or through
accidental means.]"
"[We understand from the testimony, without question, that the
deceased jumped from the platform with his eyes open, for his own
convenience, in the free exercise of his choice, and not from any
perilous necessity. He encountered no obstacle in jumping, and he
alighted on the ground in an erect posture. So far we proceed
without difficulty; but you must go further and inquire, and here
is the precise point on which the question turns: was there or not
any unexpected or unforeseen or involuntary movement of the body,
from the time Dr. Barry left the platform until he reached the
ground, or in the act of alighting? Did he or not alight on the
ground just as he intended to do? Did he accomplish just what he
intended to, in the way he intended to? Did he or not unexpectedly
lose or relax his self-control in his downward movement? Did his
feet strike the ground as he intended
Page 131 U. S. 110
or expected, or did they not? Did he or not miscalculate the
distance, and was there or not any involuntary turning of the body
in the downward movement or in the act of alighting on the ground?
These are points directly pertinent to the question in hand.]"
"And I instruct you that if Dr. Barry jumped from the platform
and alighted on the ground in the way he intended to do, and
nothing unforeseen, unexpected, or involuntary occurred changing or
affecting the downward movement of his body as he expected or would
naturally expect such a movement to be made or causing him to
strike the ground in any different way or position from that which
he anticipated or would naturally anticipate, then any resulting
injury was not effected through any accidental means. [But if, in
jumping or alighting on the ground, there occurred, from any cause,
any unforeseen or involuntary movement, turn, or strain of the body
which brought about the alleged injury, or if there occurred any
unforeseen circumstance which interfered with or changed such a
downward movement as he expected to make, or as it would be natural
to expect under such circumstances, and as caused him to alight on
the ground in a different position or way from that which he
intended or expected, and injury thereby resulted, then the injury
would be attributable to accidental means.]"
"Of course it is to be presumed that he expected to reach the
ground safely and without injury. [Now, to simplify the question
and apply to its consideration a common sense rule, did anything,
by chance or not as expected, happen in the act of jumping or
striking the ground which caused an accident? This, I think, is the
test by which you should be governed in determining whether the
alleged injury, if any was sustained, was or was not effected
through accidental means.]"
"You have the testimony in relation to the occurrence which it
is claimed by the plaintiff produced in Dr. Barry a mortal injury.
Taking it all into consideration and applying to the facts the
instruction of the court, you will determine whether, if any injury
was sustained, it was effected through external, violent, and
accidental means. The defendant claims
Page 131 U. S. 111
that if Dr. Barry did sustain injury, it was one of which there
was no external and visible sign within the meaning of the
certificate of insurance, and therefore that the plaintiff is not
entitled to recover. [Counsel are understood to contend that no
recovery could be had under a certificate of insurance in the form
and terms of this one if the injury was wholly internal. In that
view the court cannot concur. It is true there must be an external
and visible sign of the injury, but it does not necessarily follow
from that that the injury must be external. That is not the meaning
or construction of the certificate. Such an interpretation of the
contract would, in the opinion of the court, sacrifice substance to
shadow, and convert the contract itself into a snare -- an
instrument for the destruction of valuable rights. Visible signs of
injury, within the meaning of this certificate, are not to be
confined to broken limbs or bruises on the surface of the body.
There may be other external indications or evidence which are
visible signs of internal injury. Complaint of pain is not a
visible sign, because pain you cannot see. Complaint of internal
soreness is not such a sign, for that you cannot see; but if the
internal injury produces, for example, a pale and sickly look in
the face, if it causes vomiting or retching, or bloody or unnatural
discharges from the bowels; if, in short, it sends forth to the
observation of the eye, in the struggle of nature, any signs of the
injury, then those are external and visible signs, provided they
are the direct results of the injury, and with this understanding
of the meaning of the certificate of insurance, and upon the
evidence, you will say whether, if Dr. Barry was injured as
claimed, there were or were not external and visible signs of the
injury, and the determination of this point will involve the
consideration of the question whether what are claimed here to have
been external and visible signs were, in fact produced by -- were
the result of -- the injury, if any was sustained.]"
"The next question is, if Dr. Barry was injured as claimed, was
the injury the sole or proximate cause of his death? Interpreting
and enforcing the certificate of insurance according to its letter
and spirit, it must be held that if any other cause
Page 131 U. S. 112
than the alleged injury produced death, there can be no
recovery, so that, to entitle the plaintiff to recover, you must be
satisfied that the alleged injury was the proximate cause of death.
Whether a cause is proximate or remote does not depend alone upon
the closeness in the order of time in which certain things occur.
An efficient, adequate cause being found, it must be deemed the
true cause unless some other cause, not incidental to it, but
independent of it, is shown to have intervened between it and the
result. If, for example, the deceased sustained injury to an
internal organ, and that necessarily produced inflammation, and
that produced a disordered condition of the injured part whereby
other organs of the body could not perform their natural and usual
functions, and in consequence the injured person died, the death
could be properly attributed to the original injury. In other
words, if these results followed the injury as its necessary
consequence, and would not have taken place had it not been for the
injury, then I think the injury could be said to be the proximate
or sole cause of death; but if an independent disease or disorder
supervened upon the injury, if there was an injury -- I mean a
disease or derangement of the parts not necessarily produced by the
injury -- or if the alleged injury merely brought into activity a
then existing, but dormant, disorder or disease, and the death of
the deceased resulted wholly or in part from such disease, then it
could not be said that the injury was the sole or proximate cause
of death."
"It is claimed by the plaintiff that the supposed jar or shock
said to have been produced by jumping from the platform caused some
displacement in the duodenum; that it became occluded, to use the
expression that has been used by witnesses; that there was
constriction and occlusion of that intestine, which was accompanied
with consequent inflammation -- in short, that the deceased had
duodenitis, as the direct result of the alleged original injury,
and in consequence died. This contention is urged upon all the
circumstances of the case, and upon the testimony offered by the
plaintiff tending to show the symptoms which accompanied the last
sickness, the diagnosis of the case made by attending physicians,
and the
Page 131 U. S. 113
alleged developments of the autopsy. It is contended in behalf
of the defendant that there was no constriction, occlusion, or
inflammation of the duodenum; that the deceased did not have
duodenitis, and that no physical injury is shown to have resulted
from jumping from the platform. This claim is based upon the
contention that the various symptoms manifested in the last
sickness of the deceased were consistent with natural causes, with
some undiscovered organic trouble not occasioned by violence or
sudden injury; that the conclusions of the physicians who made the
post mortem examination were erroneous, and that the microscopic
examination of the parts in New York demonstrated such alleged
error. Concerning the microscopic test made in New York by Dr.
Carpenter, the plaintiff contends that it is not reliable, and
should not be accepted, for reasons urged in argument and which I
need not repeat."
"Now between these conflicting claims, weighing and giving due
consideration to all the testimony, you must judge. If the deceased
died of some disease or disorder not necessarily resulting from the
original injury, if there was an injury, then the defendant is not
liable under this certificate of insurance, but if the deceased
received an internal injury which in direct course produced
duodenitis, and thereby caused his death, then the injury was the
proximate cause of death. In considering this case, you ought not
to adopt theories without proof, nor to substitute bare possibility
for positive evidence of facts testified to by credible witnesses.
Mere possibilities, conjectures, or theories should not be allowed
to take the place of evidence. Where the weight of credible
testimony proves the existence of a fact, it should be accepted as
a fact in the case. Where, if at all, proof is wanting, and the
deficiency remains throughout the case, the allegation of fact
should be deemed not established. There has been considerable
testimony given by physicians, what we call 'expert testimony,' and
in the consideration of that testimony it is your province to
determine which of these medical witnesses is right in his
statement, opinion, or judgment. It is purely a question of fact
for you, which of these
Page 131 U. S. 114
physicians was most competent to form a judgment as to the cause
of Dr. Barry's death. Who has had the best opportunities for
forming a judgment as to the cause of death?"
"All this is to be taken into consideration by you in weighing
and deliberating upon this evidence. . . ."
"I am asked to instruct you that, before the plaintiff can
recover, she must show that when the defendant received the proofs
of death, on or about July 15, 1883, it either had cash on hand
belonging to class AA, or that it levied an assessment upon the
members, and by that means received money which belonged to class
AA. This construction of the certificate is upon the theory that to
entitle the plaintiff to recover, it is essential to show either
that it had money on hand with which to meet this loss or that it
has made an assessment from which the loss can be paid. This
instrument I must decline to give you for the reason that it
appears from the evidence that there were more than a sufficient
number of members in class AA to pay the five thousand dollars on
this certificate, if an assessment were to be made, and I regard it
the duty of the association to make the assessment when the death
loss is proved, and where the case is one upon which the
association is liable to pay the loss."
"Now to sum up the case, if you find from the evidence that the
deceased, on the 20th day of June, 1883, sustained a bodily injury,
and that such injury was effected through external, violent, and
accidental means, and was one of which there was an external and
visible sign, and that the injury was the proximate or sole cause
of death, then the plaintiff should have a verdict in her favor.
If, on the contrary, you find either that the injury was not
sustained or that, if it was sustained, it was not effected through
external, violent, and accidental means, or was an injury of which
there was no external and visible sign, or that it was not the
proximate or sole cause of death, then your verdict should be for
the defendant. If you find the plaintiff entitled to recover, you
will render a verdict in her favor for the sum of five thousand
dollars, with interest at seven percent, computed from the 15th of
September,
Page 131 U. S. 115
1883, to the present time, adding the interest to the principal,
so that you verdict will show the gross sum."
After the charge had been given a juryman inquired: "Is there
any evidence showing that the association did make an assessment
after receiving proof of Dr. Barry's death?" The court replied:
"[There is some proof on that subject. You need not take that
into consideration at all, for I have instructed you that if you
should find the facts as I have stated them to you the plaintiff is
entitled to recover. You need not take into consideration the
matter of assessment.]"
The defendant excepted to the part in brackets.
Page 131 U. S. 119
MR. JUSTICE BLATCHFORD, after stating the case as above
reported, delivered the opinion of the Court.
(1) When the trial took place, in December, 1885, the following
provision of the state statute was in force in Wisconsin,
(Rev.Stat. of Wisconsin, 1878, 760, § 2858, title 25, c. 128):
"The court, in its discretion, may, and when either party at or
before the close of the testimony, and before any argument to the
jury is made or waived, shall so request, the court shall direct
the jury to find a special verdict. Such verdict shall be prepared
by the court in the form of questions, in writing, relating only to
material issues of fact and admitting a direct answer, to which the
jury shall make answer in writing. The court may also direct the
jury, if they render a general verdict, to find in writing upon any
particular questions of fact, to be stated as aforesaid. In every
action for the recovery of money only or specific real property,
the jury may, in their discretion, when not otherwise directed by
the court, render a general or a special verdict."
It is contended for the defendant that the court erred in
refusing its demand to submit a special verdict in the case, as
provided by the rules of practice in the state. It is, however,
Page 131 U. S. 120
conceded in the brief of its counsel that the refusal to submit
a special question in connection with the general verdict was not
error in view of the ruling of this Court in
Indianapolis
Railroad Co. v. Horst, 93 U. S. 291,
93 U. S. 299.
In that case, this Court adhered to its views expressed in
Nudd
v. Burrows, 91 U. S. 426,
91 U. S. 442, that
the personal conduct and administration of the judge in the
discharge of his separate functions was neither practice, pleading,
nor a form or mode of proceeding, within the meaning of § 5 of the
Act of June 1, 1872, 17 Stat. 197, now § 914 of the Revised
Statutes, and further said that the statute was not intended to
fetter the judge in the personal discharge of his accustomed duties
or to trench upon the common law powers with which in that respect
he is clothed. This principle has been uniformly applied since by
this Court, and we are of opinion that it covers the demand made in
this case that the court should submit a special verdict, as
provided by the rules of practice in the State of Wisconsin, and
should submit the particular question mentioned in that
connection.
(2) It is also urged as error that the court did not restrict
the case to the issue made by the pleadings; that that issue was
that the assured died from "a stricture of the duodenum," produced
by the accident, and that the issue submitted by the court was
accidental death from anything. The court very properly refused to
instruct the jury that the assured did not die from duodenitis, and
its response to the request to instruct them that, if they found he
did not die from duodenitis, their verdict must be for the
defendant, was that it refused to give that instruction, "except as
contained in the general charge." It is contended, however, for the
defendant that in the general charge, the jury were charged in
effect that if the assured sustained internal injury of any kind by
his jump, and died therefrom, the plaintiff could recover. But we
do not so understand the charge. In a part of it, before set forth
and not excepted to by the defendant, the court distinctly laid
before the jury the issue as to the constriction or occlusion of
the duodenum, and the contentions of the two parties in regard
thereto, and told the jury that they must judge between those
conflicting claims, weighing and giving due consideration to
Page 131 U. S. 121
all the testimony, and that if the deceased received an internal
injury, which in direct course produced duodenitis, and thereby
caused his death, then the injury was the proximate cause of
death.
(3) It is further urged that there was no evidence to support
the verdict, because no accident was shown. We do not concur in
this view. The two companions of the deceased jumped from the same
platform at the same time and place, and alighted safely. It must
be presumed not only that the deceased intended to alight safely,
but thought that he would. The jury were, on all the evidence, at
liberty to say that it was an accident that he did not. The court
properly instructed them that the jumping off the platform was the
means by which the injury, if any was sustained, was caused; that
the question was whether there was anything accidental, unforeseen,
involuntary, unexpected, in the act of jumping, from the time the
deceased left the platform until he alighted on the ground; that
the term "accidental" was used in the policy in its ordinary,
popular sense, as meaning "happening by chance, unexpectedly taking
place, not according to the usual course of things, or not as
expected;" that if a result is such as follows from ordinary means,
voluntarily employed, in a not unusual or unexpected way, it cannot
be called a result effected by accidental means; but that if, in
the act which precedes the injury, something unforeseen,
unexpected, unusual occurs which produces the injury, then the
injury has resulted through accidental means. The jury were further
told -- no exception being taken -- that in considering the case,
they ought not to adopt theories without proof or substitute bare
possibility for positive evidence of facts testified to by credible
witnesses; that where the weight of credible testimony proved the
existence of a fact, it should be accepted as a fact in the case,
but that where, if at all, proof was wanting, and the deficiency
remained throughout the case, the allegation of fact should not be
deemed established.
In
Martin v. Travelers' Ins. Co., 1 Foster & Fin.
505, the policy was against any bodily injury resulting from any
accident or violence, "provided that the injury should be
occasioned
Page 131 U. S. 122
by any external or material cause operating on the person of the
insured." In the course of his business, he lifted a heavy burden
and injured his spine. It was objected that he did not sustain
bodily injury by reason of an accident. The plaintiff
recovered.
In
Insurance Co. v. Burroughs, 69 Penn.St. 43, the
policy was against death "in consequence of accident," and was to
be operative only in case the death was caused solely by an
"accidental injury." It was held that an accidental strain,
resulting in death, was an accidental injury within the meaning of
the policy, and that it included death from any unexpected event
happening by chance, and not occurring according to the usual
course of things.
The case of
Southard v. Railway Passengers' Assurance
Co., 34 Conn. 574, is relied on by the defendant. That case,
though pending in a state court in Connecticut, was decided by an
arbitrator who was then the learned district judge of the United
States for the District of Connecticut. But if there is anything in
that decision inconsistent with the present one, we must dissent
from its views.
(4) It is contended that no recovery at law could be had on this
policy, or at most only one for nominal damages, on the ground that
the contract of the defendant was not to pay any sum absolutely,
but only to levy an assessment and pay over the proceeds, and that
the remedy of the plaintiff was solely in equity, for a specific
performance of the contract.
The policy says: "The principal sum represented by the payment
of two dollars by each member in division AA of the association, as
provided in the bylaws," not to exceed $5,000, "to be paid" to the
wife. Although the bylaws state that the object of the association
"is to collect and accumulate a fund" for the purpose named, and
that on the requisite proof of bodily injury to and the death of a
member of a division, the board of directors shall immediately
order an assessment of two dollars upon each person who was a
member of the division to which the deceased belonged at the time
of his death, and pay the amount so collected, according to the
prescribed schedule of classification, to the proper beneficiary,
the policy
Page 131 U. S. 123
does not contract to make an assessment, nor does it make the
payment of any sum contingent on an assessment, or on the
collection of an assessment. It agrees to pay a principal sum
represented by the payment of two dollars for each member in
division AA, within sixty days after proof of death. The
association always knows the number of members, which is to be
multiplied by two. It has sixty days in which to make the
assessment and collect what it can, before making any payment, but
it takes the risk as to those who do not pay in time or at all. The
liability to assessment is all that concerns the beneficiary, not
the making or collection of an assessment, and the liability to
assessment only measures the amount to be paid under the
policy.
In view of the amendment made to the complaint at the trial,
which was not excepted to, and of the testimony of the secretary of
the defendant, the charge of the court of the subject of an
assessment was proper, and so was the verdict.
In the cases cited by the defendant, either the policy was
different from the present one in providing only for levying an
assessment and paying the amount collected or there was no proof of
the assessable number of members.
We see no error in anything excepted to by the defendant, and
the judgment is
Affirmed.
[
Footnote 1]
"
No. 794 Division AA $5,000"
"The United States Mutual Accident Association of the City of
New York."
"This certificate witnesseth that the United States Mutual
Accident Association, in consideration of the warranties and
agreements made to them in the application for membership, and of
the sum of four dollars, do hereby accept John S. Barry, by
occupation, profession, or employment a physician, residing in
Vulcan, State of Michigan, as a member in division AA of said
association, subject to all the requirements, and entitled to all
the benefits, thereof. The principal sum, represented by the
payment of two dollars by each member in division AA of the
association, as provided in the bylaws (which sum, however, is not
to exceed five thousand dollars) to be paid to Theresa A. Barry,
his wife, if surviving, in the event of the prior death of said
beneficiaries, or any of them, said sum shall be paid as provided
in the by laws, within sixty days after sufficient proof that said
member at any time within the continuance of membership, shall have
sustained bodily injuries effected through external, violent, and
accidental means, within the intent and meaning of the bylaws of
said association and the conditions hereunto annexed, and such
injuries alone shall have occasioned death within ninety days from
the happening thereof: . . . provided always, that this certificate
is issued and accepted subject to all the provisions, conditions,
limitations, and exceptions herein contained or referred to: . . .
provided always, that benefits under this certificate shall not
extend to hernia, nor to any bodily injury of which there shall be
no external and visible sign, nor to any bodily injury happening
directly or indirectly in consequence of disease, nor to 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 certificate, . . . nor to any case except where the
injury is the proximate or sole cause of the disability or death. .
. . And these benefits shall not be held to extend . . . to any
case of death . . . unless the claimant under this certificate
shall establish by direct and positive proof that the said death or
personal injury was caused by external violence and accidental
means, and was not the result of design, either on the part of the
member or of any other person."
[
Footnote 2]
"Art. 1, sec. 3. The object of this association is to collect
and accumulate a fund to be held and used for the mutual benefit
and protection of its members (or their beneficiaries) who shall
have sustained, while members of the association, bodily injuries,
whether fatal or disabling, effected through external, violent, and
accidental means."
"Art. 7, sec. 1. Upon sufficient proof that a member of one of
the divisions of this association shall have sustained bodily
injuries effected through external, violent, and accidental means
within the intent and meaning of these bylaws and the conditions
named in the certificate of membership, and such injuries alone
shall have occasioned death within ninety days from the happening
thereof, the board of directors shall immediately order an
assessment of two dollars upon each person who was a member of the
division to which deceased belonged at the time of such death, and
shall pay the amount so collected, according to the following
schedule of classification, . . . to the person or persons whose
name shall at the time of the death of such member, be found
recorded as his last-designated beneficiaries, if surviving: to
members of division AA, not exceeding $5,000."