delivered the opinion of the court.
This ease is as follows: On the 14th day of November, 1884, a certificate of membership was issued to one James E. Newman for the benefit of his sister Nora Newman, a child of about five years of age. On the morning of September 3rd, 1885, the said James E. Newman was found dead in bed, in a public hotel in the city of Richmond. He had retired to bed about eleven o’clock the night before, and had requested the servant to call him about six o’clock in the morning. The servant upon entering the room next morning about six o’clock, found the room full of coal gas and James E. Newman dead in bed as stated above. Others were called, among them the proprietor of the house, a policeman, and the coroner of the city. The evidence shows that thé dead man was lying in bed in quite a natural position, with a ball of tough froth over his mouth, slightly tinged with blood, and some red splashes on the side of his face, and on his breast.
All the indications showed that he had been killed by the
There was no motion in the court below to set aside the verdict as contrary to the law and the evidence, and the questions arising here are upon the exceptions taken in the said court to rulings there upon the instructions given to the jury and refused by the court. The instructions refused by the court were the fourth, fifth, and eighth instructions asked by the defendant.
The fourth instruction is as follows: “ T ourth, That if the jury
The fifth instruction was as follows: '“Fifth, That words in written contracts, unless they are technical in their character, must he construed according to their common acceptation and popular meaning; if therefore the jury shall believe from the evidence that James E. Newman’s death was caused by the inhalation of coal gas, that such gas when so inhaled destroys, life, is considered and classed by medical men and writers generally as a poisonous substance, and is recognized as a poison, in popular and common acceptation, then they must construe the words poison and poisonous substances, as including such coal gas; and if they believe that said James E. Newman’s death was caused by the inhalation of such poisonous coal gas, they must find for the defendant.”
The eighth instruction was as follows: “Eighth, If the jury believe from the evidence that when first discovered on the morning of the 3rd of September, 1885, the body of James E. Newman had been dead from four to six hours, that there were no visible signs of violence upon the body; that there
The court refused to give the said fourth and fifth instructions because they were misleading and calculated to exclude from consideration the theory of suffocation.
The eighth instruction was rejected by the court because it invaded the province of the jury, and determined what properly belonged to them, in the opinion of that court.
The court had already instructed the jury by the first instruction asked by the defendant—that the plaintiff in this action can recover only upon the contract evidenced by the policy of insurance, or certificate of membership dated 14th of November, 1884, including the application for membership made part thereof, and the conditions contained therein, and they must give effect to each and every provision and stipulation thereof according to the evidence before them, and they have no right to disregard any part of the same upon any theory or opinion of theirs that it ought to have been different from what it is; and secondly, that to entitle the plaintiff to recover anything in this action, she must establish by direct .and positive proof that James E. Newman died from bodily injuries, effected through external, violent and accidental means, and that his death was caused alone by such external,
And by the defendant’s third instruction, that to entitle the plaintiff to recover, she must by direct and positive proof establish the fact that James E. NeAvman died from bodily injuries effected through external, violent and accidental means, and by such means alone; but she must also satisfy the jury that there Avere external and visible signs upon the body of the said James E. NeAvman of sAich injuries at the time of his death.
The jury, upon the motion of the defendant, had also been instructed in the sixth instruction as to the change of employment on the part of the deceased from a clerk to that of a bartender, Avhich reduced the recoArery from $5,000 to $8,000, as provided for a change of employment to one more hazardous, as a bar-tender Avas regarded by the policy; and, by the seventh instruction as to the necessity for notice of death, &c., as required by the policy, in order to entitle the beneficiary to any recovery.
Having so instructed the jury on the motion of the defendant, the court gave an instruction on the motion of the plaintiff' in lieu of the fourth, fifth, and eighth instructions of the plaintiff rejected by the court. This instruction given on the motion of the plaintiff AAras as folloAvs:
“ The court instructs the jury that it is for the jury to determine, upon all the evidence in this cause, Avhether the.monoxide of carbon, sometimes knoAvn as carbonic oxide, is poisonous or not AAÚthin the intent and meaning of the Avords poison or poisonous substances, as used by Avay of exceptions and proaúso in the policy in suit; and even if they should believe that it is poisonous, Avithin such intent and meaning, yet if they believe that the death of James E. NeAAonan Avas not caused by this carbonic oxide, but by the elements of coal gas AAÚtli AAdiich it Avas combined, and that such other elements AAfire not poisonous, but acted by AAray of asphyxiation or suffocation, then this*58 would be death by external, violent, and accidental means within the intent and meaning of the policy. This of course is based upon the supposition that James E. Newman came to his death by breathing coal gas in which carbonic oxide was present; facts which are for the jury to determine on the evidence.”
The principles upon which contracts of insurance are to be construed, are well understood in the profession and have been clearly laid down in this and other appellate tribunals, and are to be found in all the text writers. The principles applicable to them are the same as those which obtain in the construction of other contracts; the same rule of construction which applies to other instruments, apply to these, also. They are to be construed according to the sense and meaning of the terms used. Their terms are to be understood in their plain, ordinary, and popular sense, unless they have generally in respect to the subject matter, as by the known usage of trade, acquired a peculiar sense distinct from the popular sense—rendering it necessary to resort to extrinsic proof in order to determine in which sense they are used, and so to explain their ambiguity; or,, unless the context evidently points out that they must, in the particular instance and in order to effectuate the immediate intention of the parties, be understood in some special and peculiar sense. Lord Ellenborough in Robertson v. French, 4 East., 135.
It is a contract, and is to be governed by the same principles as govern other contracts. Its language is to receive a reasonable interpretation; its intent and substance, as derived from the language used, should he regarded; full legal effect should always be given to it, for the purpose of guarding the company against fraud and imposture. Beyond this we would be sacrificing substance to form—following words rather than ideas. Cornfoot v. Fowke, 6 Mees. and W., 358; Farley v. North American Fire Ins. Co., 25 Wend., 374; Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S., 527; Murray v. Hatch, 6 Mass., 465;
As we have seen above, one of the exceptions contained in this x>olicy was when death was caused by taking poison, or contact with poisonous substances ; there was much conflict in the evidence given by experts sworn in the case, as to the meaning of poison, and whether coal gas was a poison, and whether death by inhaling coal gas was a death caused by the poisonous elements admitted to be present therein, or by suffocation or asphyxia, caused by inhaling this irrespirable substance before the poisonous elements had time to act.
Professor Mallet, a sworn expert in the case, and a distinguished medical chemist, and incumbent of the chair of chemistry and toxicology at the University of Virginia, after giving the constituents of coal gas, said: “In cases of death by coal gas, there are two causes active in producing death; one, carbonic oxide, acts directly, the other gases act simply by excluding the air; ultimately it is asphyxia in both cases; carbonic acid is a poison, using the word poison in a loose sense, and in the same loose sense you would call water a poison. Carbonic oxide produces death in the same way as does carbonic acid, but it can be called more poisonous than carbonic acid, if volume is to be considered, it not requiring so much carbonic oxide as carbonic acid to cause death. In death by suffocation or asphyxia, the lack of oxygen to supply the system stimulates the nerve centre at the base of the brain to exhaustion; when it reaches the point of exhaustion, it fails to control the respiratory muscles, and they cease to act. Death is caused in this way, i. e., by suffocation, by carbonic acid, by carbonic oxide, choking, drowning, &c. Death by suffocation or asphyxiation results from the cutting off of the supply of oxygen for the blood, and the prevention of the discharge of carbonic acid In the blood. Coal gas kills both by shutting off the supply
And he gave it as his opinion from the evidence of the undertaker as to the color of the blood which issued from the body during the embalming process, 'that there was no carbonic oxide present. He said, “from the evidence in this case, all of which I have heard, in my opinion Hewman’s death was caused by external, violent, and accidental means.” Other views were presented by other chemists, some of them differing from and in conflict with the views of Ur. Mallet. But undeivthe circumstances detailed, and the state of the evidence, the circuit court did not err in refusing to instruct the jury in effect that inhaling coal gas was a taking of poison, if they believed coal gas to be a poisonous substance, which when
The eighth instruction"was properly rejected, because it in terms asserted conclusions of fact properly determinable by the jury as to whether there were external signs of injury upon the body, whereas the jury might well find that there had been injury to the body when death had actually occurred. And we are further of opinion that the law of the case was correctly expounded to the jury by the instructions given by the court, and that there is no error in the action of the court in giving said instructions to the jury.
"We think there is no error in the judgment of the circuit court of Augusta county complained of, and the same must he affirmed.
Jud&ment aeeirmed.