Goodes v. Order of United Commercial Travelers of America

174 Mo. App. 330 | Mo. Ct. App. | 1913

REYNOLDS, P. J.

(after stating the facts). — The only questions before us for determination are as to the sufficiency of the evidence in the case to sustain .a verdict; the correctness of the ruling of the trial, court in overruling demurrers at the close of plaintiff’s case and at the close of all the evidence in the ease; objection to the testimony of certain-expert witnesses called by plaintiff, and to the form of the hypothetical question asked by plaintiff; to the verdict, as based upon presumptions upon presumptions and inferences upon inferences; to the giving of plaintiff’s second instruction; to giving the instruction number 5 of the court’s own motion; to refusing instructions asked by defendant.

Disposing of the error assigned as to the correctness of the hypothetical question and the answers to it, we find no error in the question, nor do we think that the contention of the learned counsel for appellant, that the question and answers had a tendency to substitute the opinions and conclusions of the surgeons for the verdict of the jury, is sound. We do not agree with the learned counsel that the answers were mere conclusions, in the technical sense of that word. They constituted opinion evidence m the true sense of of that term and were the very kind of evidence that the use of expert witnesses is intended to and should adduce.

Counsel argue that expert witnesses “may not usurp the functions of the jury, nor be permitted, in answering hypothetical questions, to state what, in their opinion, was the cause of the death of insured.” This is only partially correct. One of the functions, in fact the only function of an expert witness, is to give his opinion of the cause of death, basing that on the hypothetical case.

We are very much inclined to 'agree with Mr. Wig-more (3 Wigmore on Evidence, secs. 1920-1922, inclusive) in his criticism of the use of the phrase, “usurping the function of the jury,” and of the kindred phrase, “that an opinion can never be received when it touches ‘the very issue before the jury,’ ” the latter stated in the form that “it is a general rule that a witness cannot be allowed to express an opinion upon the exact question which the jury are required to decide.” It can hardly be said that the opinion evidence of experts usurps the function of the jury, for even without a specific instruction to that effect, any ordinarily intelligent jury understands that “opinion evidence,” while intended to advise the lay mind, is advisory only and not binding. Nor does “opinion evidence” in !any case, determine the issue; it is not entered as of the verdict nor as the judgment of the court. So that it is a little difficult to understand how it can ever be said to usurp the function of the jury. In the case at bar, we find no infringement of the rule as to the admission of opinion evidence. To the contrary.we are of the opinion that the rules governing such testimony, as laid down by our Supreme Court in Wood v. Metropolitan Street Ry. Co., 181 Mo. 433, 81 S. W. 152; Taylor v. Grand Ave. Ry. Co., 185 Mo. 239, 84 S. W. 873; State v. Hyde, 234 Mo. 200, 136 S. W. 316, and by the Kansas City Court of Appeals in Thomas v. Metropolitan St. R. Co., 125 Mo. App. 131, 100 S. W. 1121; Holtzen v. Missouri Pac. Ry. Co., 159 Mo. App. 370, 140 S. W. 767, and Moore, Admr., v. Missouri Pac. Ry. Co., 164 Mo. App. 34, 147 S. W. 488, were observed.

Turning to the demurrers to the evidence, we have to say as to the action of the trial court in overruling these demurrers, that unless it is to be held as a matter of law that the fact that John Thomas Goodes had a diseased body which rendered him more susceptible to accident, or which would make a slight fall produce fatal results, bars recovery, a proposition which we will take up later, there can be no question whatever that there was testimony of a very substantial kind warranting the jury in finding’ that the death was. the result of external injuries alone, received in, the result of, an accident. All the authorities, even those cited by counsel for appellant and hereafter referred to on other points, hold that where the evidence given at the trial, ’with all the inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant, otherwise, the case is for the jury. See Randall v. Baltimore & Ohio R. R. Co., 109 U. S. 478; where that rule is well and concisely stated. It cannot be pretended in the case at bar that the evidence was so clearly all one way on this issue, that there could be no difference as to its effect in the minds of reasonable men. The whole conduct of the defense, in its line of pleading and at the trial, negatives any such conclusion. The demurrers were properly overruled.

This brings us to a consideration of the instructions. No error is assigned on the first instruction given at the instance of plaintiff, nevertheless we have set it out in full, as the instructions given, as well as the action of the trial court in refusing others, are, generally, necessarily to be considered in arriving at a full understanding of the case. The errors assigned are to the second instruction given at the instance of plaintiff, to the fifth given by the court .of its own motion, and to the action of the <'ourt in refusing certain instructions asked by defendant.

It will be noticed that the first instruction given covers the whole case and squarely meets the issue tendered by the learned counsel for defendant, namely, that plaintiff is entitled to recover if the jury found that the fall was the direct cause of the bursting of the blood vessel in the brain which resulted in the death of John Thomas Goodes, but that plaintiff could not recover if death happened directly or indirectly in consequence of disease. The second instruction given at the instance of plaintiff puts this matter in a more concrete form. “If,” says the court, “such fall was the direct cause of a bursting of the blood vessels in the brain which resulted in his death, then the fall was the direct cause of death, notwithstanding the jury may find that said Goodes was suffering from diseased arteries, heart and kidneys.” This presents the issue and covers the defense interposed in the most distinct and sharpest manner possible and is in direct negation of all the instructions asked by defendant and refused by the court. If this instruction, in connection with the first given at the instance of plaintiff, is correct, then none of the instructions asked by defendant should have been given. They presented a diametrically opposite theory. Hence the issue and the determination of this case depends upon the determination of the correctness of these instructions in connection with the others which were given. If these instructions and the fifth, given by the court, are correct, the verdict must stand; if incorrect, then there should be a reversal.

Before taking up the discussion of this proposition, however, it is as well to say that we concede that the burthen of. proof was on plaintiff below to show that the death of the insured was caused by'bodily injury effected through external, violent and accidental means, and that this alone caused his death. We further concede that it is not permissible in a court of law “to base presumptions upon presumptions and inferences upon inferences. ’ ’ The first instruction which the court gave to the jury at the instance of plaintiff recognized the first proposition in unmistakable terms, and, as before remarked, no complaint is made of this instruction. We are unable to agree that in the case at bar the jury, in arriving at its verdict, were compelled “to base presumptions upon presumptions and inferences upon inferences.” The jury were proceeding upon neither presumptions nor inferences but upon affirmative, positive testimony, distinctly laying before them the facts connected with the accident, connected with the death of John Thomas Goodes, and it was unnecessary for them to indulge in either inference or presumption and we have no reason to assume that they acted on either. This does not mean that the jury did not have the right to, and did not draw any and all proper inferences which the facts in evidence warranted. That is always within their province.

It is further claimed that where the evidence is as consistent with the cause of death not accidental as with an accidental cause, the verdict should be for the defendant. Whatever force there may be in this aphorism, we are unable to appreciate its application to the case at bar. The jury were told in plain and unmistakable terms by the first and practically in the second instruction given at the instance of plaintiff, as well as those given for the defendant, that before they could find for plaintiff they must find from the evidence in the case that John Thomas Goodes came to his death while a member of the order in good standing “and that the direct cause thereof was bodily injury effe'cted through external, violent and accidental means, alone, independent of all other causes, . . . and that such death did not happen directly or indirectly in consequence of disease and was not caused wholly or in part by bodily infirmity or disease, and that there were external and visible evidences or marks of such accident on the body of the deceased;” that they must further find from the evidence that “John Thomas Goodes accidentally slipped and fell from a stool and that such fall was the direct cause of a bursting of the blood vessels in the brain which resulted in his death,” the court telling the jury in the second instruction that if he fell and burst a blood vessel, “then the fall was the direct cause of death, notwithstanding the jury may find that said Goodes was suffering from diseased arteries, heart and kidneys.” It is difficult to understand how the court could have put more plainly to the jury the proposition that they were to determine that the accident was the sole, direct and proximate cause of the death of John Thomas Goodes. There is no confusion here; no diverting of the minds of the jurors. They were told distinctly that unless the accident was the direct cause of the death there could be no recovery, and that if his fall “was caused by apoplexy or a cerebral hemorrhage brought on by a diseased condition of his arteries, the plaintiff cannot recover.”

They were further told by the first instruction that they must find that there were external or visible evidences of accident or marks on the body of the deceased. That is a correct proposition, as will be seen by reference to United States Mutual Accident Assn. v. Barry, 131 U. S. 100, l. c. 111, and United States Mutual Accident Assn. v. Newman, 84 Va. 52, l. c. 56, as well as in other cases cited by counsel. In the Barry case, supra, the district judge who tried the case, in charging the jury, said: “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.” This part of the charge was approved by the Supreme Court.

There was direct evidence in the case at bar, contradicted it is true, that blood issued from the ear and nostril of the deceased. That was a visible sign.

With these incidental propositions, as we may call them, disposed of, we return to the consideration of that involved in the giving of the second instruction at the instance of plaintiff and the fifth given by the court of its own motion, and the refusal of the instructions asked by defendant, which, in brief, as before stated, presents the question as to the propriety of the jury taking into consideration the diseased condition of the arteries, heart and kidneys of John Thomas Goodes in arriving at the determination of the question as to whether the fall was the direct cause of his death.

In support of their contention that but for the diseased condition of his body the accident would not have caused the death of John Thomas Goodes and that if that was so there could' be no recovery, we are cited by the learned counsel for appellant to the cases of National Masonic Accident Assn. v. Shryock, 73 Fed. 774; Travelers’ Ins. Co. v. Selden, 78 Fed. 285; Commercial Travelers’ Mut. Accident Assn. v. Fulton, 79 Fed. 423; Hubbard v. Mut. Accident Assn., 98 Fed. 930. We are also cited by these counsel to Carr v. Pacific Mut. Life Ins. Co., 100 Mo. App. 602, 75 S. W. 180 and Fetter v. Fidelity & Casualty Co., 174 Mo. 256, 73 S. W. 592, in addition to these cases, in support of the proposition that when the violence of the injury was not alone sufficient to account for death, and the existence of the disease is an' essential factor in the fatal result, plaintiff is not entitled to recover under the terms of the contract involved in this case. Western Commercial Travelers’ Assn. v. Smith, 85 Fed. 401, is also cited. It is true that the Kansas City Court of Appeals, in Carr v. Pacific Mut. Life Ins. Co., supra, did hold, following Commercial Travelers’ Mut. Accident Assn. v. Fulton, supra, that under a policy of accident insurance which provides that it shall not extend to or cover accidental injuries or death resulting from or caused directly op indirectly, wholly or in part, by disease in any form, there can be no recovery for the death of the insured if he had a disease but for which death wpuld not have resulted from the accident. The Kansas City Court of Appeals further cites in support of this National Masonic Accident Assn. v. Shryock, supra, and other cases which so decide, notably Travelers’ Ins. Co. v. Selden, supra; Commercial Travelers’ Mut. Accident Assn. v. Fulton, supra; and Hubbard v. Mut. Accident Assn., supra.

The opinion in the Carr case, supra, was handed down June 8, 1903. Two months before that, namely, on April 1, 1903, our Supreme Court handed down its opinion in Fetter v. Fidelity & Casualty Co., supra. It is not referred to in the Carr case and in all probability was not called to the attention of the Kansas City Court of Appeals when it handed down its decision in the Carr ease, affirmed in Strode v. St. Louis Transit Co., 197 Mo. 616, l. c. 621, 95 S. W. 851. We think that the decision in the Fetter case is contrary to that of the Kansas City Court of Appeals in the Carr case, and as we shall hereafter show, does not sustain but is adverse to the claim of appellant. We had occasion to consider the Fetter case in the case of Beile v. Travelers’ Protective Assn., 155 Mo. App. 629, 135 S. W. 497. In the Beile case we held, in effect, that the policy in question excepted from its provisions of indemnity death caused wholly or in part by bodily or mental infirmity or disease. This language we held means nothing more than. that the plaintiff, to recover, was only bound to prove that the accident and not the infirmity with which the insured was afflicted, was the proximate cause of death. In the Beile case we referred to and quoted approvingly Driskell v. United States Health & Accident Ins. Co., 117 Mo. App. 362, 93 S. W. 880. There the policy provided, in effect, that it. was payable only and in case death should result solely from external injuries, and it was said, and this we quoted approvingly in the Beile case (l. c. 646) that “the only reasonable interpretation to be placed upon this clause is to say that the injury must stand out as the predominant factor in the production of the result and not that it must have been so virulent in character as necessarily and inevitably .to have produced that result, regardless of all other conditions and circumstances. . . . When evidence is introduced that points to the injury as the sole active force that brings into operation death-producing agencies, the issue of the proximate cause is one of fact for the jury and not of law for .the .court. ’ ’ That our brethren of the Kansas City Court of Appeals fell in line with what we understand to be the decision of our Supreme Court in the Fetter case, seems very clear from a consideration of the decision of that court in Hooper v. Standard Life & Accident Ins. Co., 166 Mo. App. 209, 148 S. W. 116. In that case the trial court instructed the jury that if they found and believed from the evidence that Hooper was stricken with apoplexy while riding in the street car and that he was so stricken either while sitting in a seat or in an attempt to árise therefrom, and that such apoplexy caused his death, then it was the duty of the jury to return a verdict in favor of defendant, and that if the jury should believe from the .evidence that the death of Mr. Hooper was caused by apoplexy resulting from a diseased condition of his body, it was their duty to return a verdict in favor of defendant, “regardless of all other questions in the caseThese deuce of defendant it might appear that the deceased had died from apoplexy caused by a diseased condition, that is that he would not have died but for that condition and therefore under the terms of the instruction the verdict must be for defendant, yet the evidence for plaintiff was to the effect that if the accident of his falling had not happened he would not have been stricken with apoplexy. So that “the effect of the instruction” (given at the instance of defendant), says Judge Ellison, “was to cut out plaintiff’s theory of her case; especially when there was added (by the court) the words (to the fourth instruction) ‘regardless of all other questions in the case.’ ” It is clear, we think, that the Kansas City Court of Appeals has here greatly modified the view taken in the Carr case by this decision in the Plooper case.

The leading case sustaining the position taken by counsel for appellant here is that of National Masonic Accident Assn. v. Shryock, supra, hereafter referred to as the Shryock case. In that case it is said that under an accident policy, practically with like conditions as in the case before us, the insurer would not be liable, if at the time of the accident, the insured was suffering from a pre-existing disease, and death would not have resulted from the accident in the absence of such disease, but that the insured had died because the accident aggravated the effect of the disease or the disease aggravated the effects of the accident. “The death,” says Judge Sanborn, who delivered the opinion, “in such a case would not be the result of the accident alone,' but it would be caused partly by the disease and partly by the accident, and the contract exempted the association from liability therefor.” . Several cases are cited by the learned circuit judge in support of this proposition. Following this are the Federal decisions which we have above referred to as relied upon by counsel for appellant, namely, Travelers’ Ins. Co. v. Selden, supra; Commercial Travelers’ Mutual Accident Assn. v. Fulton, supra; Western Commercial Travelers’ Assn. v. Smith, supra; and Hubbard v. Mutual Accident Assn., supra.

Travelers’ Ins. Co. v. Selden, supra, while referring to the Shryock case, supra, can hardly be said to be applicable, as the undisputed evidence of the case, even that on the part of plaintiff there, who was defendant in error, showed that the death was the result of apoplexy, and there was no evidence tending to show that the deceased had been injured through any external, violent or accidental means whatever. On this showing the circuit court of appeals very properly held that the trial court should have directed the jury to find for the defendant on the rule announced by Mr. Justice Gray in Randall v. Baltimore & Ohio Railroad Co., supra. What is said in this Selden case about the Shryock case, supra, therefore, was outside of the decision.

Commercial Travelers’ Mutual Accident Assn. v. Fulton, supra, it may be conceded, practically adopts .the view previously expressed by Judge Sanborn in the Shryock case.

Western Commercial Travelers’ Assn. v. Smith, supra, while adopting the view expressed in the Shryock case on the above point, resulted in favor of the plaintiff below.

Hubbard v. Mutual Accident Assn., supra, a decisión by a district judge holding circuit court, follows the Shryock case on this proposition.

It has been said in criticism of the Shryock case, supra, that this particular part of it is obiter in that case. However that may be, it undoubtedly has been followed in other cases by the Federal courts. It was cited by the Kansas City Court of Appeals in the Carr cáse, supra, approvingly. It was called to the attention of our Supreme Court in the Fetter case by counsel who represented the appellant in that case, but while not referred to by name by onr Supreme Court in its opinion in the Fetter case, obviously was not accepted.

On practically a like policy or certificate of membership as that involved in the Shryock case, which had been before the United States Circuit Court of Appeals, and involving the same accident and to the same individual the question which had been before the Federal court came before the Supreme Court of Nsbraska, in the case of Modern Woodmen Accident Assn. v. Shryock, 54 Neb. 250, hereafter referred to as the Modern Woodmen case. Both policies or certificates were issued in Nebraska and were Nebraska contracts. In the Modern Woodmen case, referring to the Shryock case, the Supreme Court of Nebraska, on careful consideration and examination of the authorities cited by Judge Sanborn in support of his views, explicitly refused to follow him on the proposition here involved, analyzing the cases cited by Judge Sanborn and citing many authorities, not only from the reports of the State of Nebraska but elsewhere in support of the contrary view. In the Modern Woodmen case, following the practice in Nebraska, the trial 'court had submitted certain special interrogatories -to the jury which the jury were required to answer. The first interrogatory is, Did Shryock, on the day 'named, meet with an accident in the city of Omaha, whereby he received external and violent bodily injury? To this the jury returned the answer, “Yes.” Second. Did Shryock, prior to and at the time of his death, have fatty degeneration of the heart? The jury answered, “Yes.” Third. “If you answer that William B. Shryock received an accidental, external, and violent bodily injury, did that injury alone cause his death?” The jury answered, “Yes.” Fourth. “If ■you answer that William B. Shryock, prior to and at the time of his death, had fatty degeneration of the heart, did that disease alone cause his death?” The instructions are held by the Kansas City Court of Appeals to have been erroneous; that while from the evijury answered, “No.” Fifth. “What was the cause of the death of William B. Shryock?” .The jury answered, “By violent bodily injury, he at the time having fatty degeneration of the heart.”

There was a verdict for the plaintiff Shryock and it was from the judgment on this the appeal was taken to the Supreme Court of Nebraska. Entirely disagreeing with the conclusion arrived at by the United States Circuit Court of Appeals in the Shryock case, on a like certificate and the same accidental death, the conclusion arrived at by the Supreme Court of Nebraska was that whether an accident or a disease caused the death of a party whose life was insured against death by accident, was the sole question which should be submitted to and determined by a jury; unless with reference to that proposition the proofs are so convincing that all reasonable men, in the fair exercise of their judgment, would be brought to adopt the- same conclusion. In other words, the conclusion of the Supreme Court of Nebraska is that the fact that at the time of sustaining the accident the deceased may have had other diseases, does not bar a recovery, if the accident in itself, and not these diseases, was the sole cause of the death. We refer to this decision of the Supreme Court of Nebraska without further quotation, as a sufficient answer, in our minds, to the argument advanced in the United States Circuit Court of Appeals in the Shryock case. While we are not bound or controlled by the decisions of either of these courts, we recognize them as composed - of judges of great ability, and as between them we accept that of the Supreme Court of Nebraska as in harmony with the decisions of our own courts as expressed in the cases heretofore cited, particularly with the decision of our Supreme Court in the Fetter case, supra. In this latter case Judge Valliant, who delivered the opinion, holds that where it is agreed in an accident policy to pay in case the injuries resulted in the death of the insured and it appears that they are sustained through external, violent and accidental means, independent of all other causes, the causes meant are the proximate or direct, not the remote causes; such a policy meaning that the accident must he the sole and only direct cause of the insured’s death, and does not mean that the beneficiaries cannot recover, if the accident hastened on or accelerated some hidden or hitherto concealed disease so as to cause death, or if the accident superinduced or generated a disease which caused his death.

It is not out of the way to call attention to the fact that this same view, entertained by our Supreme Court and announced in the Fetter case, and by our court in the Driskell and Beile cases, supra, has not only the support of the decision of the Supreme Court of Nebraska in the Modern Woodmen case, supra, but finds support in at least two decisions of the English courts. One of these is by its Court of Appeals in the case of Winspear v. The Accident Insurance Co., Limited, 6 Q. B. Div. Law Reports (1880-1881), 42. It appears, as stated by Lord Chief Justice Coleridge, that the insured died from drowning in the waters of a brook into which he fell whilst in an epileptic fit. Drowning, says the learned chief justice, within the meaning of the policy, is a death “by accidental, external and visible means.” “I am therefore of opinion,” says the chief justice, “that the injury from which he died was a risk covered by this policy, and the only question then remaining is whether the case is within the proviso which provides that the insurance ‘shall not extend to death by suicide, whether felonious or otherwise, or to any injury caused by or arising from natural disease, or weakness or exhaustion consequent upon disease.’ It is certainly not within the first part of this proviso, because the death was not so occasioned, neither does it appear to me that the cause of the death was within those latter words of the proviso. The death was not caused by any natural disease or weakness or exhaustion consequent upon disease, but by the accident of drowning. I am of opinion that these words in the proviso mean what they say, and that they point to an injury caused by natural disease, as if for instance in the present case, epilepsy had really been the cause of the death. The death, however, did not arise from any such cause, and those words have no application to the case, and therefore the judgment of the Exchequer Division must be affirmed. ’ ’

The other English case is Lawrence v. Accidental Insurance Co., 7 Q. B. Div. Law Reports (1880-1881), 216, a case in which the insured, while at a railway station, was seized with a fit and fell forwards off the platform across the railway, when an engine and cars which were passing went over his body and killed him. The Queen’s Bench Division, Lord Coleridge, Chief Justice, presiding, held that the death of the insured was caused by an accident within the meaning of the policy and that the insurers were liable. The principal opinion was delivered by Mr. Justice Denman. Mr. Justice Williams, in a concurring opinion, refers to the well known maxim of Lord Bacon which, as Mr. Justice Williams says, “is applicable to all departments of the law,” and directly applicable to the case before the court. He quotes Lord Bacon’s language in his Maxims of the Law, Reg. 1, as running thus: ‘ ‘ It were infinite for the law to consider the causes of causes, and their impulsions one of another; therefore it eontenteth itself with the immediate cause.” Applying this, Mr. Justice Williams says that according to the true principles of law we are to look at only the immediate and proximate cause of death, “and it seems to me to be impracticable to go back to cause upon cause, which would lead us back ultimately to the birth of the person, for if he had never been bom the acci dent would not have happened.”

It will be observed that the questions submitted in the Modern Woodmen case, calling for special findings by the-jury, practically put the case before the jury in the exact light and on the same issue that the trial court in the case at bar put this case by the instructions given. It follows that it would have been error to have given any of the instructions asked by defendant, appellant here, and which we have set out as refused. They were properly refused as submitting to the jury a case not within the terms of the policy..

It is to be remembered in cases' of accident insurance, no physical examination is made, no warranties of health required or given. Certainly none appear to have been in the case before us.. There is no pretense of warranties of health or physical condition having been exacted, from the insured. He was accepted as a risk in the condition in which the company found him at the time, with the explicit provision, however, that to make the company liable, the death must result solely from accident. It cannot be successfully argued, as is here in effect attempted, that any distinction is to be made or exemption claimed because the subject of the accident was more liable to die from accident, being in one physical condition or in another. We all know, it is a matter of common experience and common knowledge, that if a young man twenty-five years of age breaks a limb the broken limb knits much more rapidly and completely in a man at that age than in one of the age of fifty years. Men 70 years of age or over are not usually insured by accident companies. Parallels might be run indefinitely in this line. Injury to a perfectly healthy man is never as apt to result fatally as in the case of a man who is weakened by disease, or where one man is much stronger, physically, than another.

While there was testimony from surgeons called by the defendant, to the effect that in their opinion Mr. Goodes died of apoplexy and not from the effects of the fall, none of them would he held to give it as an opinion that death would have oecxxrred when it did but for the fall. That must be so, for who, expert or layman, whose opinion woxxld be of any probative force, could be accepted as giving testimony of any value, if, with the facts developed by the autopsy, he should undertake to say that any of the ascertained conditions would — absent the accident — have produced the death at this time. Men have lived for many years with Bright’s Disease, impaired arteries, unsound heart, diseased conditions far more advanced than here found. So that, at the end, we must face this question, Did Mr. Gloodes die from disease present in his system, or from the accident? If from the disease, there would be no liability; if from the accident, liability was imposed. This was the question submitted to the jury by proper instructions. It was for them to answer it under the evidence. They answered it in favor of the plaintiff.

If this company had wished to place its risk on the line of health or physical condition, or age, it should have done so in its contract; its rates would probably have been adjusted accordingly. It did nothing of the kind. It expressly contracted that it would not pay if the death was the result of disease; it expressly contracted to pay if death resulted solely from external accident. That was the issue that was fairly submitted to the jury in this case, submitted in such distinct terms by the instructions given at the instance of plaintiff and defendant, that it was impossible for them to have erred as to the law given them by the court. Under those instructions, warranted by the law and the evidence, their verdict is conclusive upon us.

¥e see no error in the conduct of the trial, either as to the admission of testimony or the giving or refusal of instructions.

The judgment of the circuit court is affirmed.

Nortoni and Allen, JJ., concur.