Griswold v. Metropolitan Life Insurance

The law of this case as laid down in the majority opinion is tersely stated therein as follows: "It was an accident, and hence the injury was caused by accidental means." To reach this conclusion is to ignore the plain terms of the contract involved, eliminate all distinction between "accident" and "accidental means," confuse cause and effect, and allow the latter to control and give character to the former. To such a result, I cannot agree; and my views are so deep-seated that I feel constrained to give expression to them.

I shall first give attention to cases relied upon by the majority. Of these, one group — twenty-three in number — is especially stressed. An analysis of these cases will disclose the weakness of the support they afford the majority.

Of them, seven are from inferior or intermediate federal courts, and their value as authorities is utterly eliminated byLandress v. Phoenix Mutual Life Ins. Co., 291 U.S. 491, 78 L. ed. 934, 54 Sup. Ct. 461, 90 A.L.R. 1382, decided March 5, 1934, to which further reference will be made. Two of the cases are from Iowa. There is a strange inconsistency in the Iowa cases as I read them, and it is rather difficult to decide just what the law of this subject is in that state. The Lickleider Case, cited by the majority, was this: The insured was changing a tire on an automobile when he suffered a fatal injury. In his efforts to pull off the tire, it suddenly slipped onto him, catching him in an awkward pose, and, in his struggle to handle it, he received his injury. The record presents a plain case of an intervening fortuitous circumstance which changed the entire character of the cause of the accident. This is shown by what the court says in its opinion: "But it is equally apparent," says the court, "that the tire gave way or came loose with unexpected suddenness, causing him (insured) to stagger or fall back from the stooped and strained position he was occupying, and in our judgment it was open to the jury to find from all these circumstances that in this involuntary and undesigned movement, so unexpectedly produced, he sustained a strain or injury to some of his vital organs, which proved fatal. A death so produced would be accidental both in cause and in effect." I have no quarrel with this proposition. Such a death would be by accidental means.

Among the authorities relied upon in the above case, are UnitedStates Mut. Acc. Assn. v. Barry, 131 U.S. 100, 33 L. ed. 60, 9 Sup. Ct. 755, which is full authority for my position here, though it is frequently cited by those who accept the views of the majority; Young v. Railway Mail Assn., 126 Mo. App. 325, 103 S.W. 557, a case expressly overruled as hereinafter shown;Standard Accident Ins. Co. v. Schmaltz, 66 Ark. 588, 53 S.W. 49, 74 A.S.R. 112, a case much like the Lickleider Case, and for the same reason, the case of an intervening fortuitous circumstance;Fetter v. Fidelity Casualty Co., 174 Mo. 256, 73 S.W. 592, 61 L.R.A. 459, 97 A.S.R. 560, another case of an intervening fortuitous circumstance, the slipping of a pole which the insured was using to raise a window, which caused him to fall forward to his injury; Western Commercial Travelers' Assn. v. Smith (C.C.A.), 85 Fed. 401, 40 L.R.A. 653, a case rendered useless by the Landress Case; and Hanley v. Fidelity Casualty Co., 180 Iowa, 805, 161 N.W. 114, still another plain case of intervening fortuitous cause, the tipping of a box which the insured was using in his work, which caused him to fall to his injury. So if it can be said that the Lickleider Case affords any real support to the majority's conclusion, its foundation is too unstable to be much relied upon.

But in Lehman v. Great Western Acc. Assn., 155 Iowa, 737, 133 N.W. 752, 753, 42 L.R.A. (N.S.) 563, the insured ruptured a blood vessel while bowling. The opinion is by Judge McClain, a distinguished jurist and text-writer, who says: "Our inquiry must be limited to the more concrete question, arising under a policy of accident insurance, as to what is an injury caused solely by external, violent, and accidental means; for the defendant company had the right to limit its liability so as to exclude injuries not of that character." Further on, he says: "Finally, it is to be borne in mind that in this case there is no evidence whatever of any slipping or falling, or any straining of muscles, other than the intentional strain put upon them in the voluntary and intentional act of bowling. Such a strain was not an accidental strain, and if it produced an unintentional result and consequent injury, nevertheless the resulting injury and not the means producing it, was accidental." Judgment for the defendant was affirmed. The opinion presents a candid and convincing statement of the law I am contending for. Carnes v.Iowa State, etc., Assn., 106 Iowa, 281, 76 N.W. 683, 68 A.S.R. 306, was a case of death by morphine. It was held that the burden was on the plaintiff to show that the cause of death was accidental, and, if the decedent took just as much morphine as he intended to take, but misjudged its effect, there could be no recovery. For failure of proof a verdict for the plaintiff was reversed.

In Smouse v. Traveling Men's Assn., 118 Iowa, 436, 92 N.W. 53, the insured ruptured a blood vessel in attempting to remove his night shirt. He became entangled in the garment, and, in his efforts to get it off, he suffered the fatal injury. The case is unsatisfactory and confused. To me, it presents an intervening fortuitous circumstance, and the man's struggle seems to have been more or less involuntary. But the general tenor of the opinion favors my views of the question in hand.

In Payne v. Fraternal Acc. Assn., 119 Iowa, 342, 93 N.W. 361, the insured was run over by a freight car. His policy covered injuries occurring "through external, violent, and accidental means." The court said: "An accident, in the sense we are here called upon to consider the expression, means a result the inducing cause for which was not put in motion by the voluntary and intentional act of the person injured."

In Clarkson v. Union Mutual Casualty Co., 201 Iowa, 1249,207 N.W. 132, 133, the rule is thus stated: "All of our cases hold that it is not sufficient that there was an accidental * * * result only, but that the means must have been accidental; that is, involuntary and unintentional. If the injury suffered by appellee resulted from an act intentionally and purposely done, without more, the disability that followed does not come within the plain term of the policy." There were circumstances in the case that made the question of what caused the injury one for the jury, but the law announced supports me in this dissent.

From these cases, it appears that the Iowa court correctly stated the law in practically all of its cases, and I confidently assert that the law of that state is with me.

Returning to the cases cited in support of the majority opinion:

Two are from Utah, and I agree that the law as applied in that state is with the majority, though the Carter Case states the rule correctly.

One is from North Carolina, but it affords little support to the majority. On the contrary the law therein laid down is mostly in my favor. The insured died under rather suspicious circumstances, and it was claimed that he died of poisoning. The coroner found that he died "from some ``poisonous substance taken internally.'" And the question, as stated by the court, was whether this finding was "sufficient evidence to warrant recovery upon the policy and ward off a non-suit?" The liability clause of the policy was like the one in hand. "Therefore," says the court, "in order to warrant recovery for death in such event, such death must not only be accidental but must be produced by ``accidental means.' There is abundant authority for the proposition that death by inadvertent poisoning or by taking poison through mistake constitutes ``accidental means' within the meaning of clauses similar to the one forming the basis of this suit." The court then quotes from Olinsky v. Railway Mail Assn., 182 Cal. 669, 189 P. 835, 14 A.L.R. 784, as follows: "It may be treated as established by the great weight of authority that an injury is not produced by accidental means where it is the direct, though unexpected, result of an ordinary act in which the insured intentionally engages." And from U.S. Mut. Acc. Assn. v. Barry,131 U.S. 100, 121, 33 L. ed. 60, 9 Sup. Ct. 755, as follows: "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." Upon these and other authorities the court concludes — and here is where it slipped — that "``accidental means' implies ``means' producing a result which is not the natural and the probable consequences of such means." This conclusion is wholly unwarranted by the cases cited and wholly unnecessary in the case made by the record. The court immediately gets back on to the right track by adding: "If the result, although unexpected, flows directly from an ordinary act in which the insured voluntarily engages, then such is not deemed to have been produced by accidental means." The court concluded that it did "not appear that the deceased took poison by mistake or through inadvertence." And that, assuming that there was evidence of poison in his stomach after death, "there is no evidence that it got there through accidental means."

Two of the majority cases are from New York, and the law of that state is with it.

Two are from Illinois, but neither is from the court of last resort. Hutton v. States Acc. Ins. Co., 267 Ill. 267, 108 N.E. 296, L.R.A. 1915E, 127 Ann. Cas. 1916C, 577, holds that one who assaults another and is himself injured in the fight that follows is not injured by accidental means, that he was bound to know that some injury might befall him, and that he could not recover under a policy insuring against injuries incurred through accidental means.

One of the majority's cases is from California, but not from the highest court of that state. It holds that one who voluntarily submits to ministrations by a dentist and suffers an injury from germs introduced by unsterile dental instruments, sustains an injury through accidental means. The court correctly recites the rule that requires that it be made to appear that the injury was caused by accidental means, that it is not enough that the injury should be unexpected and unforeseen, and that there must be something of an unexpected or unforeseen character in the means through which the injury was sustained. And it finds that element in the condition of the dental instruments. It purports to follow Rock v. Travelers' Ins. Co., 172 Cal. 462,156 P. 1029, 1030, L.R.A. 1916E, 1196, wherein it is said in speaking of a policy like the one in hand: "A differentiation is made, therefore, between the result to the insured and the means which is the operative cause in producing this result." And further on quotes from Clidero v. Scottish Acc. Ins. Co., 29 Scot. L.R. 303, as follows: "The question, in the sense of this policy, is not whether death was the result of accident in the sense that it was a death which was not foreseen or anticipated. That is not the question. The question is, in the words of this policy, whether the means by which the injury was caused were accidental means. The death being accidental in the sense in which I have mentioned, and the means which led to the death as accidental, are to my mind, two quite different things. A person may do certain acts, the result of which acts may produce unforeseen consequences, and may produce what is commonly called accidental death, but the means are exactly what the man intended to use and did use, and was prepared to use. The means were not accidental, but the result might be accidental."

Olinsky v. Ry. Mail Assn., 182 Cal. 669, 189 P. 835, 14 A.L.R. 784, was a case in which the insured, suffering from tuberculosis, attempted to swim against a strong current. His exertions brought on a hemorrhage, which recurred from time to time, and he died in about three weeks. It was held that inasmuch as he was doing exactly what he intended to do, and nothing unexpected or unintended occurred in his efforts, an accidental death was shown, but not a death by accidental means. The law of California is clearly my way.

One of the majority's cases is from Alabama. There was nothing decided in that case that has any significance here. It is true that the court said this: "When the voluntary act of the insured caused the injury, by way of, or as the result of, unanticipated and unexpected circumstance and result, it is within the terms of the contract." What this obscure statement was intended to mean, I cannot imagine. But it had nothing to do with the result of the case. All that was decided was that the injury which resulted in a hernia was sustained before the issue of the policy and that it was not covered thereby.

More to the point is Stokely v. Fidelity Casualty Co.,193 Ala. 90, 69 So. 64, L.R.A. 1915E, 955, wherein it was held, without conceding that there was any bodily injury sustained through accidental means, that the bursting of the stitches used in closing the incision in an appendicitis case, necessitating another operation during which the patient died, could not be recovered for under the policy sued on.

One of the majority's cases is from Kentucky. It holds, as stated, that one who drinks a poisonous liquid in ignorance of its character, is injured by accidental means, and finds the fortuitous element in the ignorance referred to. But it is not to be taken that the law of Kentucky supports the conclusion of the majority in this case. The law of that jurisdiction is thus stated in Salinger v. Fidelity Cas. Co., 178 Ky. 369, 371, 198 S.W. 1163, 1164, L.R.A. 1918C, 101; "It may be taken as established by the great weight of authority that an injury is not produced by accidental means within the terms of an accident insurance policy, where it is the direct, though unexpected, result of an ordinary act in which the insured intentionally engages." The case was one where the insured was blinded by the exertion of putting a box of goods upon a high shelf. An ordered verdict for the defendant was sustained. Again, in Bahre v.Travelers' Protective Assn., 211 Ky. 435, 277 S.W. 467, 468, a case where the insured was injured while driving a car over a rough road, the court reaffirmed the above rule, by quoting it, and affirmed a judgment on a verdict ordered for the defendant.

Still again, in Provident Life Acc. Ins. Co. v. Watkins,256 Ky. 645, 76 S.W.2d 889, 891, the court quotes from the Salinger Case as above, but distinguishes the case in hand therefrom for the reason that the insured fell when he attempted to reach a whistle cord, which was the accidental means of his injury.

One of the majority's cases is from Nebraska; it supports the majority, and expresses the law of that state. The same may be said of the Washington case, cited by the majority.

The Missouri case cited by the majority, as above stated, was expressly overruled by Caldwell v. Travelers' Ins. Co., 305 Mo. 619, 267 S.W. 907, 39 A.L.R. 56. There the insured died following an operation for a hernia. The opinion of the court contains the most painstaking and comprehensive review of the cases to be found in the books. The court reaches the conclusion that where death or injury is the unexpected result of an intentional act of the insured, without mischance, slip, or mishap connected therewith, it is not caused by accidental means. It overrulesYoung v. Railway Mail Assn., 126 Mo. App. 325, 103 S.W. 557;Beile v. Travelers' Protective Assn., 155 Mo. App. 629, 135 S.W. 497; Columbia Paper Stock Co. v. Fidelity Cas. Co., 104 Mo. App. 157, 78 S.W. 320, and repudiates the language of Eicks v.Fidelity Cas. Co., 300 Mo. 279, 253 S.W. 1029. So, out of this group of twenty-three cases, the majority is fairly entitled to count six states as supporting it. To this number may be added Wisconsin, as shown by Wiger v. Mut. Life Ins. Co., 205 Wis. 95, 236 N.W. 534.

Now let us turn to the further authorities on which I rely.Parker v. Provident Life Acc. Co., 178 La. 977, 152 So. 583, 586, is a case where the insured suffered a hernia as the result of operating the lever of a jackscrew. There was no slip of hands or feet, no break or loosening of machinery to cause a sudden jerk or jar, and nothing to increase the load which he expected to lift, and he acted voluntarily. "The overwhelming weight of authority," says the court, "is to the effect that, if the means which produces the injury is intentionally, voluntarily used in the usual and expected way, the resulting injury, though unexpected, unusual, or unanticipated, is not produced by ``accidental means.' But if in the act which precedes the injury there intervenes something unforeseen or unexpected, or if something unusual occurs which produces the injury, then it may be said the injury resulted from ``accidental means.'" Recovery was denied. Southard v. Railway Passenger Assur. Co.,34 Conn. 574, Fed. Cas. No. 13,182, was before Judge Shipman of the United States District Court as an arbitrator, but his carefully prepared opinion is worthy of acceptance as a judicial decision, and it is so regarded. It was a case wherein the insured suffered a hernia as the result of jumping hastily from a railroad car and running a considerable distance. There was no stumbling or slipping or falling. All the accident there was, was the result of ordinary means voluntarily employed in a not unusual way. "It would not help the matter," says the learned judge, "to call the injury itself — that is, the rupture — an accident. That was the result, and not the means through which it was effected." The claim was disallowed.

In Smith v. Travelers' Ins. Co., 219 Mass. 147, 106 N.E. 607, L.R.A. 1915B, 812, the insured died from the effects of a nasal douche. The harm was done by the fact that he drew it too violently into his nostril, whereby it reached the Eustachian tube and was carried into the middle ear, and thence penetrated the brain through an unusual hole in the mastoid bone. The court said: "But there was nothing accidental in the inhalation of this douche. The deceased did exactly what he intended to do. This particular inhalation, though harder or more violent than usual, was not, so far as appears, harder or more violent than he intended it to be. There was no shock or surprise during the inhalation which made him draw a deeper breath than he intended to draw, nothing strange or unusual about the circumstances. The external act was exactly what he designed it to be, though it produced some internal consequences which he had not foreseen. Accordingly there was no bodily injury effected through a means which was both external and accidental." A judgment for the defendant was affirmed.

To the same effect is Henderson v. Travelers' Ins. Co.,262 Mass. 522, 160 N.E. 415, 56 A.L.R. 1088, where a man dove into a pool and had mastoiditis from germs received into his nose.

In Lawrence v. Massachusetts Bonding Ins. Co., 113 N.J. Law, 265, 174 A. 226, a man wrenched his back pitching quoits. There was no mishap and nothing unusual or unintentional about it except the wrench. It was held that his injury was not caused by accidental means.

In Ramsey v. Fidelity Casualty Co., 143 Tenn. 42, 223 S.W. 841, 13 A.L.R. 651, a case where the insured died from blood poisoning following the extraction of a tooth, the court, after reviewing the authorities followed Stone v. Fidelity Cas. Co.,133 Tenn. 672, 673, 182 S.W. 252, L.R.A. 1916D, Ann. Cas. 1917A, 86, and held that since there was no accidental means shown, there could be no recovery. The court said in the Stone Case: "The general rule is that an injury is not produced by accidental means, within the meaning of this policy, where the injury is the natural result of an act or acts in which the insured intentionally engages. A person may do certain acts the result of which produces unforeseen consequences resulting in what is termed an accident; yet it does not come within the terms of this contract. The policy does not insure against an injury that may be caused by a voluntary, natural, ordinary movement, executed exactly as intended. Therefore, to determine the matter, we look, not to the result merely, but to the means producing the result. It is not sufficient that the injury be unusual and unexpected, but the cause itself must be unexpected and accidental."

In Kendall v. Travelers' Protective Assn., 87 Ore. 179, 169 P. 751, a barber was removing a dead hair from a customer's chin, and the wound made in the process became infected. It was held that if the wound was intentionally made the resulting injury was not caused by "accidental means," since under such a policy as was there (and here) involved liability was to be determined by causes rather than consequences.

In Standard Acc. Ins. Co. v. Cherry (Tex. Civ. App.),36 S.W.2d 807, 810, the insured was injured while delivering ice in the way usual to him. It was observed by the court that the policy limited the company's liability to injuries caused by accidental means, that there is a well-established distinction between accidental injuries and injuries resulting from accidental means; that death caused by accidental means is an accidental death, but an accidental death may or may not be the result of accidental means; that under such a policy the element of accident must consist in that which produces the injury, rather than in the mere fact that an injury occurs; that where the injury is an unexpected and unintentional result of voluntary action, there is not an injury by accidental means, though there is an accidental injury. Then the court assumes from the fact that there was an accident that there must have been some "variance unknown to him (insured) in the manner in which he handled himself in bending his body while depositing his burden. * * * There must have been some involuntary and unintentional movement, unconsciously performed, that intervened and caused the rupture of the ligaments, tissues, or membranes constituting his injury." This startling assumption was wholly unsupported by evidence and was manifestly unwarranted. But, so far as the law of this part of the opinion is concerned, it was correctly stated. Bryant v. Continental Casualty Co. (Tex. Civ. App.),145 S.W. 636, 637, was a case of death by sunstroke. It was held that it was not a case of accidental means. I quote from the opinion: "If a result is such as follows from ordinary means, voluntarily employed and in a not unusual or unexpected way, it 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 has resulted through accidental means."

In New Amsterdam Casualty Co. v. Johnson, 91 Ohio St. 155, 110 N.E. 475, L.R.A. 1916B, 1018, a man who had been out horseback riding, took a cold plunge, as he had frequently done. It resulted in a dilation of his heart. Since there was no evidence that anything occurred that he had not planned or anticipated, except the dilation, it was held that there was no accidental means shown.

In Husbands v. Indiana Travelers' Acc. Assn., 194 Ind. 586, 133 N.E. 130, 133, 35 A.L.R. 1184, the insured ruptured a blood vessel in the lung while shaking a furnace. The sole question was whether the injury was caused by accidental means. The opinion was given by Ewbank, C.J., whom I quote: "And the facts found fail to show that the insured slipped or stumbled, or that anything fell upon or against him, or that anything whatever that was unforeseen or not intended happened to him of an ``external, violent' nature or that he met with an ``accident' of any kind, except that his exertion in shaking down the ashes in his furnace ruptured a blood vessel * * *." Judgment for the defendant was affirmed.

Young v. Continental Casualty Co., 128 S.C. 168, 122 S.E. 577, 578, was a case where the insured ruptured himself when he reached for a book on a high shelf. While the case was reversed on the ground that an issue of fact should have been submitted, the court said: "So, if a person suffering from some weakness or disease should subject himself to conditions which would not injuriously affect persons of ordinary health, but should be dangerous to him, and injury result, it would not be due to an accidental cause."

There are many Federal Reporter cases that support me in this dissent; and, as the Supreme Court of the United States has now affirmed the rule as therein stated, I may properly cite them as authorities. I shall refer to only a few of them. Shanbery v.Fidelity Casualty Co. (C.C.A. 8), 158 Fed. 1, 5, 19 L.R.A. (N.S.) 1206, is of especial interest because it was decided by the same court — not the same judges, but including (now) Mr. Justice Van Devanter — that decided Western Com. Travelers'Assn. v. Smith (C.C.A.), 85 Fed. 401, 40 L.R.A. 653, much relied upon by courts holding with the majority. In that case, one who was covered by a policy containing the "accidental means" clause, assisted in carrying a heavy door from one building to another, and thereby ruptured his "fatty" heart. The court disregarded the Smith Case, and said: "It would not help the matter to call the injury itself — that is, the rupture of the heart — an accident. That was the result, and not the means through which it was effected. Carrying the door, or, after putting it down, the act of filling his lungs with air by drawing a long breath, was the means by which the injury was caused. Both were done by the assured voluntarily, and in an ordinary way with no unforeseen, accidental, or involuntary movement of the body whatever. There was no stumbling, slipping, or falling; there was nothing accidental in his movements, any more than there would be in walking on the street, or passing down the steps of his house, during each of which he might have filled his lungs by drawing a long breath, and ruptured his heart." Recovery was denied.

McCarthy v. Travelers' Ins. Co., 8 Biss. 362, Fed. Cas. No. 8602, was the case of one injured by the use of Indian clubs. The court said: "If he voluntarily used them (the clubs) in the ordinary way for taking such exercise, without the occurrence of any unusual circumstance interrupting or interfering with such use, or causing any unforeseen, accidental or involuntary movement of the body, and in such use of the clubs there occurred a rupture of a blood vessel and consequent injury as claimed, I do not think it then could be said that the means through which the injury was effected were accidental. But, if while engaged in such exercise there occurred any unforeseen, accidental or involuntary movement of the body of the deceased, which, in connection with the use of the clubs, brought about the injury; or, if there occurred any unforeseen or any unexpected circumstance which interfered with or obstructed the usual course of such exercise, and there was thereby produced an involuntary movement, strain or wrenching, by means of which the injury was occasioned, that would be an accident within the spirit of the policy; that is, the means by which the injury was effected would in such case be accidental."

United Commercial Travelers v. Shane (C.C.A. 8), 64 Fed. (2d) 55, 58, is cited by the federal Supreme Court in the Landress Case. It was a case wherein the insured died from the effects of a local anesthetic. In the opinion, the court quotes from the Barry Case as follows: "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."

Lincoln Nat. Life Ins. Co. v. Erickson (C.C.A. 8), 42 Fed. (2d) 997, 1001, is another case cited by the Court in the Landress Case. "In the case at bar," says the Court, "the deceased was insured, not against accidental results of intended means, but against death resulting from bodily injury effected directly through external, violent, and accidental means."

In further support of my views reference may be had to 5 Joyce on Insurance, § 2863, Richards on Insurance, § 391, Vance on Insurance, 875, and Kerr on Insurance, 383.

The majority attempts to sustain its conclusion by the syntax of the Barry Case. It says that the clause "in a not unusual or unexpected way," relates to and modifies the word "follows." This cannot be. The majority refers to Caldwell v. Travelers'Ins. Co., 305 Mo. 619, 267 S.W. 907, 39 A.L.R. 56, which makes the phrase referred to modify the word "employed." This view was expressed by Hon. William Marshall Bullitt, once a distinguished Solicitor General of the United States, in a scholarly and convincing address delivered before the Association of Life Insurance Counsel, on December 7, 1927. (3 Asso. Life Ins. Counsel, Appendix), in which he expressed views in complete accord with mine. The fallacy of the majority's reasoning appears when the whole statement of the court is taken into account. The part quoted by the majority is not a completed statement of the charge approved by the Supreme Court. In its entirety it is this: The court below correctly instructed the jury, 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." This last proposition would be wholly unnecessary and pointless if the first one means what the majority says it does.

But there is now no reason or excuse for discussing the syntax or meaning of the Barry Case. Any possible doubt regarding it has been dispelled by Landress v. Phoenix Mut. Life Ins. Co.,291 U.S. 491, 78 L. ed. 934, 54 Sup. Ct. 461, 90 A.L.R. 1382, hereinbefore referred to. That case was that of a man who suffered a sunstroke while playing golf. The Court held, Mr. Justice Cardozo alone dissenting, that the death of the insured did not result from "accidental means." "But it is not enough to establish liability under these clauses," says Mr. Justice Stone, speaking for the Court, "that the death or injury was accidental in the understanding of the average man — that the result of the exposure ``was something unforeseen, unsuspected, extraordinary, an unlooked for mishap, and so an accident,' * * * for here the carefully chosen words defining liability distinguish between the result and the external means which produces it. The insurance is not against an accidental result. The stipulated payments are to be made only if the bodily injury though unforeseen, is effected by means which are external and accidental." The opinion indorses the Barry Case, and says that the distinction between accidental means and accidental result has been generally recognized. That the Barry Case means just what I claim for it is thus made apparent. For, if the case meant what the majority says it does, the result of the Landress Case would have been the other way.

Tested by the cases I have cited, and many others to be found in the books, it becomes apparent by the record that it was reversible error to refuse to instruct the jury as requested by the defendant.

It remains to consider whether it was error to submit the case to the jury.

The burden of proof was, of course, on the plaintiff, and, since the phrase "by violent and accidental means" defines the defendant's liability, she was required to establish the fact that the accident on account of which she is suing was so caused. What mishap attaching to the means of this accident did she give evidence of? There is but one possible answer, none. There is not a scintilla of evidence that anything unexpected, unintended, or fortuitous intervened to affect the insured's intention, between the time he raised his axe and the time it came into contact with the wood he was at work upon. No slip, no catching of the axe on anything over his head, nothing to divert his attention or the course of the blow he was striking. Everything connected with his act worked as he intended, and there was nothing about it that was accidental except the result — the flying of the chip or stick.

There was nothing to go to the jury, and a verdict should have been ordered for the defendant.