
    INSURANCE.
    [Cuyahoga (8th) Court of Appeals,
    March 3, 1913.]
    Winch, Meals and Grant, JJ.
    New Amsterdam Casualty Co. v. Cora Belle Johnson, Admrx. of Charles W. Johnson, Deceased.
    Dilation of the Heart Caused by Taking Cold Plunge Bath Characterized as Effect of Accidental Means in Accident Policy.
    The word “means,” qualified by the adjective “accidental” in an accident insurance policy is to be considered in a liberal and popular rather than a strict and philosophical sense; if the effect of the act from which injury results has the characteristics of the act from which injury results has the characteristics of an accident it is proper to so characterize the means producing it; hence, dilation of the heart, caused by taking a cold plunge bath is properly characterized as effected by accidental means, especially, since insured was an apparently healthy and vigorous man of military activities, accustomed to such baths and had never previously experienced any bad effects therefrom.
    [Syllabus approved by the court.]
    Error to common pleas court.
    
      Seaton & Paine, for plaintiff in error.
    
      Ford, Snyder & Tilden, for defendant in' error.
   WINCH, J.

The original plaintiff in this ease was Charles W. Johnson, who brought his action against the Casualty Company to recover on an accident insurance policy for disability claimed to have been sustained as the result of an accident. Upon his death, the action was revived in the name of his administratrix..

The disability in question was due to dilation of the heart caused by taking a cold plunge bath.

The sole question submitted by the briefs for review here, though saved by motion for judgment on the pleadings, motion for a new trial, request to charge and exception to the charge given, is whether the injury complained of was effected solely and exclusively by accidental means.

The facts in the case are as follows:

On Sunday, June 9, 1909, Major Johnson was apparently in perfect health, being a man of military activities and accustomed to keep himself in good physical condition. He was wont to take horse back rides and upon his return. therefrom to take cold plunge baths, from which, until the day in question, he had never experienced any bad effects.

This day in June was warm. The major started out about 9 A. M., returning about 1 P. M., heated and perspiring freely. He took his usual cold plunge, but this time it drove the blood back to his heart with force sufficient to cause the trouble which the doctors call acute dilation of the heart. Medical experts testified that such is not the usual result of taking a cold plunge bath, nor is such result reasonably to be anticipated therefrom.

There was evidence in the record, however, that there is danger in taking a cold plunge bath when one is heated,' and that it is imprudent to take such bath when perspiring; also that the injury that occurred from taking this bath was a natural result from a natural cause.

The court charged the jury as follows:

“Now, the question will be this, gentlemen, what was Major Johnson to expect when he took this cold plunge? A man is supposed to expect that which would result from the natural consequence of his act, as that act appears to him at the time, not as it might appear to a physician, but as it would appear to him under all the circumstances-surrounding that particular transaction. Reading from a reputable work:
‘ ‘ ‘ The natural consequence of means used is the consequence which ordinarily follows from its use; the result which may reasonably be anticipated from its use and which ought to be-expected. The probable consequence of the use of a given means is the consequence which is more likely to follow from its use than it is to fail to follow. An effect which is the natural and probable consequence of an act or course of action is not an accident, not is it produced by accidental means. ’
“So, then, taking all the circumstances of this particular case in consideration, the situation- of Major Johnson, his condition at that particular time, what had he'a right to expect would be the result of a plunge into a tub of' cold water ? If the thing that he should naturally expect would be a dilation of the heart, which would contract the muscles and cause the injury complained of, if that was to be expected in the ordinary acceptation of the term, by that bind of an act, — then it would not be-accidental because he would be held responsible for the natural consequences of his act, and consequently he would not be entitled to recover in this ease. But if from a course of conduct hitherto followed by him, he would have no reason or expectation, to believe that an injury, such as dilation of the heart, would be occasioned by a plunge in cold water in that manner, then under the rules that I have given you, the injury would be. caused by an accident and he would be entitled to recover in this ease.
“Now, gentlemen, you can take into consideration your own human experience with respect to these things. Men cannot close-their eyes to things which they know themselves. Was the result which happened to Major Johnson, a thing that could reasonably be expected to follow from a cold bath ? If it was, then he-cannot recover in this case nor can his executrix. If it was not, if the result was something he could not anticipate, something-that was not to be expected, — then within the meaning of the-law, of the definitions I have given you, it would be accidental and it would be covered by the terms of this policy.”

In criticism of this, counsel for plaintiff in error says:

“If this is the law, all injuries are accidental unless voluntarily incurred.
“We maintain on the contrary, that the result of an act has nothing to do with determining whether or not the act was. an accident.
“The fact that injury as the result of an act is certain, or probable, or possible — makes it no less an accident, if the act. was accidental in its nature. Nor does the fact that injury as. the result of an act is uncertain and the chance of injury remote —and not to be reasonably apprehended, — make such injury, when it does occur, one occasioned by accidental means. The-cause must be accidental, the result does not determine the cause. ’ ’
“The contention of plaintiff in error is that the event preceding the injury, and which was the proximate cause of the injury, must be in the nature of an accident. That an unexpected or unusual result of an act, not in the nature of an accident, does not render' it an accident, — or the resulting injury one occurring by accidental means. In short, that the cause determines the result, while defendant in error claims that the result determines the cause. ’ ’

What has been quoted from the charge and from the brief of counsel for plaintiff in error sufficiently exhibits the two theories as to the law applicable in such eases as this. Both theories are sustained by the authority of adjudicated cases. The general rule contended for by plaintiff in error is thus stated by Joyce:

“A person may do certain acts, the results of which may produce unforeseen consequences, and may produce what is commonly called accidental death; but the means are exactly what the person intended to use and did use, and was prepared to use; the means were not accidental, but the result might be accidental.” 3 Joyce, Insurance 3808.

This rule was applied in the case of Carnes v. Traveling Men’s Assn. 106 Iowa 281 [76 N. W. Rep. 683; 68 Am. St. Rep. 306], where the death of the assured was caused by his taking-morphine, knowing at the time how much he was taking, but not knowing that such amount would cause death.

In the case of Schmid v. Accident Assn. 42 Ind. App. 483 [85 N. E. Rep. 1032], the assured died as a result of his exertions in climbing the steps of a hotel, carrying heavy satchels. The hotel was in a high altitude where the atmosphere was rarefied'. The court applied the rule as given by Joyce and denied a recovery.

In the ease of Appel v. Insurance Co. 86 App. Div. 83 [83 N. Y. Supp. 238], the assured suffered a rupture of the appendix from the ordinary jar incident to riding a bicycle, and was denied recovery.

The same was the result in the case of Hastings v. Insurance Co. 190 Fed. Rep. 258, where the assured ruptured his heart in an effort to raise and lower himself by the use of his hands and arms when seated in a Morris chair.

For other eases'see briefs of counsel.

The contrary view, and the one followed by the trial judge, is formulated by Cooley, Law of Insurance p. 3156, as follows:

“Policies of accident insurance usually insure against ‘bodily injuries caused by external, violent and accidental means. ’ The important factor in this description of the risk assumed, is the word ‘accidental.’ In determining whether the cause of injury or death is one of the risks covered, it is therefore necessary to first determine what is meant by the term ‘accidental,’ and whether the particular cause was ‘accidental,’ within the definition. Strictly speaking a means is accidental perhaps only when disassociated from any human agency, but this narrow interpretation is not recognized in the law of accident insurance. Whether or not the means is accidental, is determined by the character of its effects. Accidental means are those which produce effects which are not their natural and proper consequences. The natural consequence of means used, is the consequence which ordinarily follows from its use — the result which may be reasonably anticipated from its use and which ought to be expected. The probable consequence of the use of a given means, is the consequence which is more likely to follow from its use, than it is to' fail to follow. An effect which is the natural and probable consequence of an act or course of action, is not an accident, nor is it produced by accidental means. It is either the result of an actual design or it falls under the maxim that every man must be held to intend the natural and probable consequences of his' deeds. On the other hand, an effect which is not the natural and probable consequences of the means which produced it, an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of such means, an effect which the actor did not intend to produce and which he cannot be charged with the design of producing, is produced by accidental means. It is produced by means which was neither désigned nor calculated to cause it. Such an effect is not the result of design, cannot be reasonably anticipated, is unexpected and is produced by an unusual combination of fortuitous circumstances; in other words, it is produced by accidental means.”

The leading case adopting this reasoning is Horsfall v. Insurance Co. 32 Wash. 132 [72 Pac. Rep. 1028; 98 Am. St. Rep. 846], where the assured, a strong, healthy man, attempted to lift a bar of iron weighing 350 to 400 pounds, by taking hold of one end of it while another man lifted the other, end. Nothing unusual happened while he was lifting the iron, but the exertion caused dilation of the heart.

Commenting on the facts of the case the court says:

“The result certainly was unexpected. It did not take place according to the usual course of things. If instead of a sprain of the muscles of the heart, the deceased had sprained the muscles of the back, or arm, or ankle, it certainly could not have been reasonably claimed that the result was not due to accident. The fact that the heart was dilated or ruptured, was none the less an accident according to the usual acceptation of the term and according to the definition above given. We think the evidence shows an accident within the meaning of the policy. ’ ’

In a case where three men jumped from a platform a few feet from the ground and one of them, the assured, in alighting, caused a stricture of the duodenum, from which he died in a few days, the Supreme Court of the United States held:

“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. ’ ’

United States Mut. Acc. Assn. v. Barry, 131 U. S. 100 [9 Sup. Ct. Rep. 755; 33 L. Ed. 60], May, Insurance p. 515, speaks of the Barry ease as one “far more sensible” than those holding the view urged by plaintiff in error.

In the case of North Am. Life & Acc. Ins. Co. v. Burroughs, 69 Pa. St. 43 [8 Am. Rep. 212], it was held that a death resulting from abdominal strain occasioned while assisting to unload a load of hay, was caused by accidental means.

See also Hey v. Liability Co. 181 Pa. St. 220 [37 Atl. Rep. 402; 59 Am. St. Rep. 644].

On authority of the Barry case, it was held in the case of Western Com. Trav. Assn. v. Smith, 85 Fed. Rep. 401 [29 C. C. A. 223; 56 U. S. App. 393], that death ensuing from blood poisoning which set in as a result of the assured wearing a pair of new shoes which rubbed the skin off his toe, was caused by accidental means.

The same was held in the case of Nax v. Insurance Co. 130 Fed. Rep. 985, where death resulted from a self-inflicted knife cut, made by the assured while trimming a corn, blood poisoning following.

Many other cases might be cited to the same effect, and they seem to be the later eases.

Chancellor Kent said: ‘ The modern reports, and the latest of the modern, are the most useful, because they contain the last, and, it is to be presumed, the most correct exposition of the law. ’ ’ In quoting this Lieber says: “It might be added, because they relate to cases applying to the same circumstances and conditions with our own, they speak the same language with ourselves. ” Lieber, Hermeneutics, 226.

Accident insurance has now come to be a common thing; it is intended as a protéction to those upon whom chance visits some injury while they are engaged in the daily and usual things of life. Every accident happens as the result of the working of fixed rules, but it is equally an accident if I voluntarily place myself under the operation of these rules without being able to foresee the consequences of so doing, as it is if I know the rules, but some power beyond my control puts me under tbeir operation.

This thought is apparent in the case of United States M. A. Assn. v. Hubbell, 56 Ohio St. 516 [47 N. E. Rep. 544; 40 L. R. A. 453], though the case turns oh the application of another clause in the policy that the injury must not result from, “voluntary exposure to unnecessary danger.”

On page 525, Judge Spear says:

“It will not be doubted that the definition of “death by accidental means,” given by the trial judge to the jury, viz.r ‘Any event which takes place without the foresight or expectation of the person acted upon or affected by the event/ was a proper definition. ’ ’

Again, on page 526, he says:

“Accidents are the result very largely of the failure to observe due care, and yet the contract is intended as a remuneration in case of accident, and it is to procure the obligation of the company to pay this remuneration, that the assured pays the premium. As stated by Allen, J., in Keene v. Accident Assn. 161 Mass. 149 [36 N. E. Rep. 891] : ‘By taking a policy of insurance against accidents, one naturally understands that he is to be indemnified against accidents in whole or in part from his own inadvertence.’ ”

Having in .mind this consideration of the nature of the accident insurance contract, a liberal and popular rather than a strict and philosophical meaning must be given to the word “means,” qualified by the adjective “accidental,” as used in the policy.

"We know that if the means is accidental, the effect is accidental; — that is conceded. But just as well we know that if the effect has the characteristics of an accident, we so characterize the means that produced it. In other words, it is common reasoning to say, as Cooley says: “Whether or not the means; is accidental, is determined by the character of its effects. ’ ’

Giving this rule to the jury to guide it in its deliberations; upon the facts in this case, was instructing it to employ that method of reasoning which men ordinarily nse, and was therefore proper.

There was no error in the charge, and this being so, because the whole case turns upon this one legal proposition, the judgment is affirmed. “

Grant and Meals, JJ., concur.  