The policy, together with the application and by-laws of the association, which are made a part thereof, are set forth as exhibits to the complaint. So far as material to the solution of the legal questions presented, the provisions of such policy are as follows: "No claims of any character shall ever accrue upon this contract, unless it arises from physical bodily injury, through external, violent and accidental means, while this contract is in force, and then only when the injury shall, independently of all other causes, immediately and wholly disable the insured from performing any and every kind of business pertaining to his occupation as above stated." "This certificate of insurance does not cover injuries nor death, for which there is no visible mark upon the body of the insured; nor death or injury from any of the following causes: disease or bodily infirmity, or acts committed by the insured, while under mental aberration, fits, insanity, rupture, vertigo, walking in sleep, narcotics, intoxication, surgical treatment, sunstroke, freezing, voluntarily taking poison, handling or using dynamite or other explosives, riots or war, quarreling, dueling, wrestling, fighting, gymnastic sports, voluntary exposure to unnecessary danger, injury resulting from the intentional act of the insured or other persons, or received while engaged in any unlawful act, or while in any gambling house, or house of illfame, or house of assignation, or any place prohibited by law; nor shall it cover suicide, whether the person is sane or insane."

The following are the allegations of the complaint with reference to the manner of Schmid's death: "The plaintiff further says that on or about the 27th day of December, 1905, while said policy was in full force and effect, the said B. Frank Schmid was killed by external, violent, and accidental means, in the manner following: That up to and prior to said date last named, and for a long time anterior thereto, the said B. Frank Schmid was a resident of the city of Indianapolis, and a citizen of, and domiciled in, the state of Indiana; that said city last named is located about 700 feet above sea level; that a few days prior to said 27th day of December, 1905, said Schmid left the said city of

rado Springs, in the state of Colorado, on business, and traveled directly from said city of Indianapolis, by railway, to said Colorado Springs; that said city of Colorado Springs is about 6,000 feet above the sea level; that said journey covered hours, and was. tedious and confining; that said Schmid at the time was over 50 years of age; that said Schmid arrived at said Colorado Springs on the evening of December 27, 1905; that he left the railway station, carrying in each hand from the train a traveling bag or satchel; that he went directly to the Antlers Hotel in said city of Colorado Springs, said hotel being located on a promontory in said city; that said Schmid, in going to said hotel from the train and station, ascended a hundred flights of steps leading to said hotel, being the usual method of approach by pedestrians; that he walked from the top of said steps into the lobby of said Antlers Hotel; that immediately on entering the hotel he fell suddenly forward to the floor, and expired in a few moments; that the death of said Schmid was due to the circulatory failure and paralysis of the heart, caused by the high altitude and unusual strain on the heart, occasioned by the muscular exertion in climbing said steps, under such circumstances, in such a rarified atmosphere. Plaintiff further says that said circulatory failure and paralysis of the heart, which resulted in Schmid's death, would not have occurred under ordinary circumstances; that said Schmid's heart was sound to the extent that it would have proved adequate and sufficient, under ordinary circumstances, for many years, but said circulatory failure and paralysis of the heart was caused solely by the unusual and extraordinary strain to which it wassubjected, as a result of the climbing said steps while carrying said bag or satchel, which was of considerable weight, combined with the effect of such rarified atmosphere, to which said Schmid was unaccustomed. Plaintiff further says that upon the occurrence of said circulatory failure or paralysis of the heart as aforesaid, and prior to his death, there appeared upon the face of Schmid a marked and unusual pallor, and thereupon said Schmid fell, as aforesaid, to the floor of said hotel; that in falling said Schmid struck his head violently against said floor, causing a cut or laceration upon his forehead; that the death of said Schmid occurred several moments after said fall; that said fall, and the violent striking of his head against the floor, as aforesaid, contributed to cause his death; that said death resulted from the combined effect of circulatory failure or paralysis of the heart, and the violent striking of his head against said floor, as the result of said fall, as hereinbefore set forth." It is further alleged that timely and due notice of and the particulars of Schmid's death were given, and that appellee denied liabil-

ity; that the beneficiaries named in the policy were the minor children of said Schmid, and that appellant is their guardian.

The question for determination is whether the death of Schmid was the result of accidental means within the provision of the policy.

It is claimed by appellant that where "the performance of intentional acts is followed by a result which is not the natural and probable consequence of those acts; where the result is altogether out of the ordinary, and could not reasonably have been anticipated or expected-such a result is regarded as having taken place by accidental means; that the present case is clearly one of the latter class; that Schmid's death resulted from heart paralysis, occasioned by a strain upon the heart, which was the altogether unusual and unexpected result of muscular exertion, under the circumstances described in the complaint; that neither the strain upon the heart, nor heart paralysis, was the natural or probable consequence of such exertion; that such results could not reasonably have been anticipated or expected-hence the death must be regarded as accidental." Horsfall v. Pacific, etc., Co., 32 Wash. 132, 72 Pac. 1028, 63 L. R. A. 425, 98 Am. St. Rep. 846; Rustin v. Standard, etc., Co., 58 Neb. 792, 79 N. W. 712, 46 L. R. A. 253, 76 Am. St. Rep. 136; Martin v. Travelers' Ins. Co., 1 F. & F. 505; Atlantic Ass'n v. Alexander, 104 Ga. 709, 30 S. E. 939, 42 L. R. A. 188; Rodey v. Travelers' Ins. Co., 3 N. M. 316, 9 Pac. 348; Miller v. Fidelity, etc., Co. (C. C.) 97 Fed. 836; Western Ass'n v. Smith, 85 Fed. 401, 29 C. C. A. 223, 40 L. R. A. 653; United States Mutual Ass'n v. Barry, 131 U. S. 100, 9 Sup. Ct. 755, 33 L. Ed. 60; Bailey v. Interstate Co. (Sup.) 40 N. Y. Supp. 513; American Co. v. Reigart, 94 Ky. 547, 23 S. W. 191, 21 L. R. A. 651, 42 Am. St. Rep. 374; Hamlyn v. Crown (1893) 1 Q. B. 750.

In the first case above mentioned, the insured in lifting a weight, while in a difficult position, strained the muscles of his heart, causing a violent dilation of the heart, from which he died. The court held that the injury was the result of an accident within the meaning of the policy. This holding is based on the reason stated as follows: "The policy insured the deceased against the effect of bodily injuries caused solely by external, violent, and accidental means. Death by accident is defined to be 'death from any unanticipated event which happens by chance, or which does not take place according to the usual course of things.' So a strain of the muscles of the back, caused by lifting heavy weights in the usual course of business, is an injury by accident or violence, 'occasioned by external or material causes operating on the person of the insured.' 2 May on Ins. (4th Ed.) § 514; U. S. Ass'n v. Barry, 131 U. S. 100, 9 Sup. Ct. 755, 33 L. Ed. 60; North Am., etc.,

Ins. Co. v. Burroughs, 69 Pa. 51, 8 Am. Rep. 212; 1 Cyc. 248, and cases cited."

May in his work on Insurance, supra, in his definition of the word "accident," fails to make any distinction between an accident and a result by accidental means.

In the Barry Case, supra, the court said: "That if a result is such as follows from ordinary means, voluntarily employed, in not an unusual and unexpected way, it cannot be as 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 through accidental means."

The

In the Burroughs Case, supra, the insured was killed by accident while assisting in hauling hay. The court held that an accidental strain resulting in death is an accidental injury within the meaning of the policy. question was upon the sufficiency of the preliminary proof of death resulting from injuries accidentally received. It appears that the affidavit stated that the deceased accidentally strained himself while loading hay, and the court held that "it is a matter of no consequence, so far as respects the liability of the company, whether it was produced by an accidental strain or by an unexpected blow from the handle of a pitchfork."

The phrases, "unanticipated event," and "which does not take place according to usual course of things," as used in the Barry and Burroughs Cases, refer to the means and not to the injury resulting therefrom.

In the Horsfall Case, the court seems to have decided that the deceased met with an accident, rather than the particular question whether the death was brought about by accidental means. The opinion contains no discussion of accidental means. In any view, however, it is not in line with the cases upon which it purports to be based.

Hamlyn v. Crown, supra; Appel v. Etna Life Ins. Co. (Sup.) 83 N. Y. Supp. 238; Horsfall v. Pacific, etc., Co., supra; Fetter v. Fidelity, etc., Co., 174 Mo. 256, 73 S. W. 592, 61 L. R. A. 459, 97 Am. St. Rep. 560-are referred to in Re Scarr & Gen. Assur. Corp., Ltd., 1 Am. & Eng. Ann. Cas. 786. In the case last named the policy provided for the payment of a certain sum by the insurance company upon the death of the insured from "any bodily injury caused by violent, accidental, and external visible means within the terms of the policy," etc. Scarr was in the apparent enjoyment of good health and able to discharge the duties of his employment, which were active duties, and he was unaware that his heart was affected. In fact, however, on December 26th, and for some considerable time prior thereto, his heart was in a weak and unhealthy condition, the effect of which was to render it less capable of working under strain. At about 9:45 on the morning of December 26th, being appar

ently in his usual state of health, he attempted to eject a drunken man from the premises where he was working, using some physical exertion for that purpose by pushing or pulling in order to overcome the drunken man's passive resistance. The effect of the physical exertion was to cause dilation of the heart, which resulted in his death on the 25th of January, 1904. But for what happened on the 26th day of December, Scarr might have lived a considerable time. The evidence showed that there was no intervening or fortuitous cause. The court said: "It seems to me that there was nothing accidental in the pushing and pulling of the drunken man or the exercise of physical exertion in so doing. Scarr intended to do this. The drunken man offered only passive resistance." In the course of the opinion, it is said: "The only English case that has any real bearing is Hamlyn v. Crown, supra. In that case the words of the policy were practically the same as here. The plaintiff stooping forward to pick up a marble dropped by a child as it rolled from him, *

and in doing so wrenched his knee." The court held that the plaintiff did not mean to get into a position in which he might wrench his knee; there was some accident; that it was not the ordinary result of such an action.

The get

ting into the particular position in which the injury happened was not done on purpose. Again, speaking to the case at bar, the court properly said: "Nor would any one in the present case speak of Scarr as having met with an accident. The question cannot, in my opinion, depend on whether or not Scarr knew he had a defective heart. If he knew that, he probably would not have tried to eject the drunken man, but that does not make the .ejecting or the result accidental."

In referring to Fetter v. Fidelity, etc., Co., supra, the court said: "There the insured was endeavoring to close a window sash, and used a pole. * * * The cause was the slipping of the pole, which threw him on the table. The slipping of the pole, and his falling on the edge of the table, were plainly accidental. It turned out that he had cancer, but the cancer would not have killed him for some time. * * * That case is, in my opinion, clearly distinguishable."

As to Appel v. Etna Life Ins. Co., supra, the opinion says in part: "Riding the bicycle was intentional, and there was no fall or collision. He rode where he chose, and brought into play such muscles of the body as he willed. I think the case is very much like the present, and it supports the view I have taken."

As to Horsfall v. Pacific, etc., Co., supra, the opinion says: "He injured his heart, which was in a perfectly healthy condition, and died in consequence. Held, death accidental. This I think, may be justified by the fact that the injury to the heart was not in his case the natural consequence of lifting the weight by the unintentional exertion

which his position made necessary. It is at all events distinguishable on this ground. In my opinion there never was any accident at all, and consequently the plaintiff fails in bringing the case within the terms of the policy."

In Rustin v. Standard Life, etc., Ins. Co., supra, where the injury upon which the claim for indemnity is grounded was the result of an effort on the part of insured to raise a heavy dumb-bell from the ground, the contract contained stipulations exempting the company from liability for injuries occasioned by unnecessary lifting and voluntary overexertion. The court held that it could not be said as a matter of law that the slight elevation of a 300-pound weight by a strong man accustomed to lifting was voluntary overexertion. It was held that a condition in a contract of casualty insurance forbidding unnecessary lifting is not broken by an act of lifting which was apparently reasonable and performed in the line of duty. The terms of contract are not set out, and there was no question involved as to whether or not the injury was one from accidental means.

In Atlanta Acc. Ass'n v. Alexander, supra, the policy was payable to plaintiff, and insured her husband against "personal bodily injuries, effected through external, violent, and accidental means." The plaintiff alleged that the insured was injured by the unexpected and unforeseen using of a heavy hammer; that he was injured by the lacerating, tearing, and wounding of his person by external, violent, and accidental means, the same being the direct and immediate result of such means; that from said result alone he died in less than two days. The court held that the evidence was sufficient to authorize the jury to infer that the plaintiff's husband was injured in the manner described in the policy. It appears from the record that he was a hale, hearty man. His occupation was that of a blacksmith. * this particular occasion, in striking a slanting blow, he suddenly felt a severe pain in the lower part of his abdomen. The injury proved to be a rupture, producing hernia, which resulted, in a few days, in death. The court held that there was evidence tending to show injury received by insured from such means from which the jury could determine as a question of fact whether the injury did result from accidental means. The case is not applicable to the case at bar, in which it affirmatively appears that the injury wholly resulted from intentional means.

On

In Rodey v. Travelers' Ins. Co., supra, plaintiff in an action on an accident policy testified that he dived from a plank into water six or seven feet deep, and that the "tympanum of the ear was ruptured by external violence in diving." It was held that the court had fairly submitted to the jury whether the injury was caused by external, violent and accidental means, stating: "A slight accidental turn of the body while descending

or bodily infirmity," etc. The complaint alleged that the insured sustained bodily injuries by swallowing certain hard, pointed, and resistant substances of food, which substances accidentally, by reason of the force and manner with which they came in contact with the intestinal tissue of the insured, and accidentally by reason of a weakened condition of said tissue, caused by illness from which he otherwise had recovered, of which weakened condition the insured had no knowledge, so perforated and wounded his intestinal canal which caused his death. A demurrer to complaint was overruled, holding that the insured was not by the first clause quoted limited to an external effect, nor to one beginning at the surface. It may be wholly internal. The only question was the sufficiency of the complaint to withstand the de

murrer.

In Western Commercial, etc., Ass'n v. Smith, supra, an abrasion of the skin of a toe, unexpectedly caused without design, by unforeseen, unusual, and unexpected friction in the act of wearing a new shoe, is an accidental injury, within the meaning of an insurance policy; the court stating that: "It was difficult to understand why an abrasion of the skin, produced unexpectedly and without design by friction caused by wearing a new shoe, does not fall within the same category as if one slipped without design in walking, or punctured his foot by stepping on a nail, or pierced it with a nail in his shoe while drawing it on."

In Bailey v. Interstate Casualty Co., supra, the insured, a physician, while he was in his carriage in the highway, and administering to himself, in his leg, for extreme exhaustion, medicine with a hypodermic needle, his carriage suddenly started, by reason whereof he accidentally inserted the needle deeply into his leg, causing an injury on account of which blood poisoning immediately set in whereby the plaintiff was disabled. The court said: "If, in the use of the needle, an agency that otherwise would not have been in force, and which was the efficient cause of the injury, was accidentally set in motion, I see no good reason why it might not be found that the injuries were attributable to the accident, as the sole and proximate cause."

In American Acc. Co. v. Reigart, supra, death was caused by a piece of meat accidentally passing into the windpipe and lodg

ing there. It was held to be death through external and violent means, within the prin ciples stated supra.

(Niblack, in his work on Accident Insurance, 373, uses the case of Hamlyn v. Crown, supra, to distinguish the difference be tween an injury that is the result of acci dental means from one that is not. Niblack on Acc. & Ben. Soc. § 373.)

Appellants also cite, in addition to the foregoing cases, Pickett v. Pacific Co., 144 Pa. 79, 22 Atl. 871, 13 L. R. A. 661, 27 Am. St. Rep. 618; Fidelity Co. v. Waterman, 161 Ill. 632, 44 N. E. 283, 32 L. R. A. 654; Paul v. Travelers' Co., 112 N. Y. 472, 20 N. E. 347, 3 L. R. A. 443, 8 Am. St. Rep. 758 (death resulting in each of above cases from asphyxiation); Peele v. Provident Soc., 147 Ind. 543, 44 N. E. 661, 46 N. E. 990 (drowning); McGlinchy v. Fidelity Co., 80 Me. 251, 14 Atl. 13, 6 Am. St. Rep. 190 (strain and fright from effort to control runaway horse); Standard Co. v. Schmaltz, 66 Ark. 588, 53 S. W. 49, 74 Am. St. Rep. 112 (strain from lifting); Maryland Co. v. Hudgins (Tex. Civ. App.) 72 S. W. 1047 (death resulting from eating unsound oysters).

As to what constitutes an accident, the reported cases are not all in accord. But our own decisions, with the weight of the decisions of other courts, we think, hold that, where an injury occurs as the direct result of intentional acts, it is not produced by accidental means.

In the case at bar the result is alleged tobe the result of certain intentional acts. The complaint alleged that "the death of said Schmid was due to the circulatory failure and paralysis of the heart, caused by the high altitude and unusual strain on the heart, occasioned by muscular exertion in climbing said steps, under such circumstances, in such a rarified atmosphere," etc. The allegations of complaint are that the injury was caused solely by the exertion, by the acts which are shown to be intentional, so that there can be no question that the result followed directly from the intentional acts. It is claimed by appellant that the intentional act clause applies only to nonfatal injuries. Under the provision of the contract which excepts liability for death from injuries resulting from intentional acts of insured, supra, it is clear that the intention was to except either death or injury "resulting from intentional acts." It would destroy the intention of the instrument to hold that it applied only to nonfatal injuries. There is no injury from any specified cause in the whole provision which is excepted, unless death from the same injury is also excepted. The clause in the policy in suit had for its subject death or injuries.

In Weber v. Home Benev. Soc., 21 Ind. App. 345, 52 N. E. 462, the policy provided that a certain sum would be paid as a funeral fund, "if death should result from any cause at any time while this member is in good standing. No benefits will be paid for self-in

flicted injuries." It was contended that "selfinflicted injuries" should be construed as applying only to injuries inflicted not fatal, the policy relating to injuries fatal and nonfatal, and the clause quoted was an independent and separate sentence. The court, on page 347 of 21 Ind. App., on page 462 of 52 N. E., said: "There is some obscurity in policy, but we think it was the intention that in case of self-inflicted injuries there should be no payment of benefit, whether the injury resulted in mere disability or in death."

In this state it has been held that the word "accident" as used in accident policies "should be given its ordinary and usual signification as being an event that takes place without one's foresight or expectation." Supreme Council, etc., v. Garrigus, 104 Ind. 133, 3 N. E. 818, 54 Am. Rep. 298; Newman v. Railway, etc., Ass'n, 15 Ind. App. 29, 33, 42 N. E. 650. Applying this definition, an injury results from accidental means when it is produced by something unforeseen, unexpected, and unusual in the act preceding it. The policy in suit is not a contract of indemnity against death or injury effected by all means. It excepts injuries and death from a number of causes herein above enumerated, and indemnifies only where such injuries arise from “physical bodily injuries through external, violent and accidental means." It embraces only cases where the element of force and accident concur in effecting the injury. It has been held that if the injury resulted from ordinary acts, no unusual circumstances íntervening, it cannot be regarded as an accident. McCarthy v. Travelers' Ins. Co., Fed. Cas. No. 8,682. Thus, where a carpenter in the performance of his ordinary work put forth an effort which was too severe for his then physical condition, an injury resulting therefrom is not an accident. Niskern v. United Brotherhood, etc. (Sup.) 87 N. Y. Supp. 640.

So where the insured, while in an emaciated condition, after safely alighting from a train carried baggage weighing 60 pounds for 50 yards, and, in doing so, injured himself in an unexplained manner, so that on putting the baggage down a defect in his vision became noticeable, which resulted in loss of sight, it was held that he could not recover for accidental injury. Cobb v. Preferred Mut., etc., Ass'n, 96 Ga. 818, 22 S. E. 976.

In Feder v. Iowa, etc., Ass'n, 107 Iowa, 538, 78 N. W. 252, 43 L. R. A. 693, 70 Am. St. Rep. 212, it was held that the death of the insured will not be considered accidental where it resulted from the rupture of an artery, where he arose to close a window, in the absence of evidence that anything ́occurred which he had not foreseen, except the rupture.

One recovering from a sickness, being suddenly awakened from his sleep, quickly arose, appearing somewhat dazed or confused, hurriedly attempted to remove his nightshirt over his head, and, while his hands were

raised, became entangled therein, and put forth exertions which broke a blood vessel. It was held that his movements were not involuntary so as to render the injury accidental. Smouse v. Iowa, etc., Ass'n, 118 Iowa, 436, 92 N. W. 53.

And in Southard v. Railway, etc., Co., 34 Conn. 574, Fed. Cas. No. 13,182, it is said that an injury caused by insured, jumping from the cars or by running to see if they were coming, is not an injury resulting from accidental means, if he acted for his own convenience, and not from perilous necessity.

(Cooley in his Briefs on Law of Insurance [volume 4, p. 3158], in reference to these and like cases, says: "The underlying theory seems to be that the acts of the insured were wholly natural and voluntary so as to exclude the idea of accident.")

In Payne v. Fraternal, etc., Ass'n, 119 Iowa, 342, 93 N. W. 361, it is said that an accident "means a result, the inducing cause for which was not brought in motion by the voluntary and intentional act of the injured. Follis v. Acc. Ass'n, 94 Iowa, 439, 62 N. W. 807, 28 L. R. A. 78, 58 Am. St. Rep. 408; Matthes v. Imperial Acc. Ass'n, 110 Iowa, 224, 81 N. W. 484; Marx v. Travelers' Ins. Co. (C. C.) 39 Fed. 321."

The following cases hold, as do the decisions in this state, that the result, though unexpected, is not an accident within the meaning of an accident insurance policy providing for liability on death of insured by accidental means. The means or cause must be accidental. In these cases it is held that death resulting from voluntary physical exertion or from intentional acts on the part of the insured is not accidental and not within the meaning of the contract like the one under consideration. Nor is disease or death caused by the vicissitudes of climate or atmosphere the result of an accident. Sinclaire v. Maritime Pass. Ass'n, 3 El. & L. 478; Dozier v. Fidelity, etc., Co. (C. C.) 46 Fed. 446, 13 L. R. A. 114; U. S. Mut. Ass'n v. Barry, 131 U. S. 100, 9 Sup. Ct. 755, 33 L. Ed. 60; Appel v. Etna Life Ins. Co. (Sup.) 83 N. Y. Supp. 238; Cobb v. Preferred Mut. Acc. Ass'n, 96 Ga. 818, 22 S. E. 976; Feder v. Travelers', etc., Ass'n, 107 Iowa, 538, 78 N. W. 252, 43 L. R. A. 693, 70 Am. St. Rep. 212; McCarthy v. Travelers' Ins. Co., Fed. Cas. No. 8,682; Southard v. Railway Pass., etc., Co., 34 Conn. 574, Fed. Cas. No. 13,182; Smouse v. Travelers' Ass'n, 118 Iowa, 436, 92 N. W. 53; Niskern v. United Bro'd, etc. (Sup.) 87 N. Y. Supp. 640.

If the 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 accident means; but if, in the act which precedes the injury, something unforeseen or unusual occurs which produces the injury, then the injury has resulted through accidental means. Standard Life & Acc. Ins. Co. v. Schmaltz, 66 Ark. 588, 53