WESTERN COMMERCIAL TRAVELERS' ASS'N V. SMITH.
real estate into the hands of the heir or his devisee. This case, although directly contrary to Fink v. Berg, and' five years earlier, is not there mentioned. Colgan v. Dunne, supra, says that the remedy, and not the right of action, is given by statute; and Hauselt v. Patterson, supra, takes the same view. In the absence of any express decision on the point involved by the court of appeals of New York, and in view of the conflicting decisions, that conclusion which is most agreeable to the common law, to justice, and the course of equitable procedure, should be adopted. Let a decree be entered for complainant.
WESTERN COMMERCIAL TRAVELERS' ASS'N. v. SMITH.
(Circuit Court of Appeals, Eighth Circuit.
February 14, 1898.)
ACCIDENT INSURANCE-NOTICE OF INJURY OR DEATH.
An accident policy provided that, in case of "any accident or injury for which any claim shall be made under this certificate, or in case of death resulting therefrom, Immediate notice shall be given In writing," with full particulars of the accident, and that a failute to give such notice should Invalidate the claim. Held, that two classes of notices were intended,-one an Immed.late notice of the accident or Injury when not resulting In death, and the other an Immediate notice of death resulting from accident 01' injury, the latter to be given by the beneficiary; and that a notice so given in the latter case'vas sufficient, though no notice of the injury was given before .death.
2. SAME-"AcCIDENTAL MEANS" DEFINED. If a, disease resvlting.in death is the effect of an accident, so as to be a
mere link In the chain of causaticn between the accident and the death, the death is attributable, not to the disease, but to the accident alone. Where blood poisoning results from an abrasion of the skin of a toe by a new shoe, and death follows, the death is properly ath'ibutable to "bodily injuries effecteil by extertlal, Violent, and accidental means," within the meauing of an accident policy.
"Accidental means" are those which produce effects which are not their natural and probable consequences. An effect which Is a natural and proba' ble consequence of an act, or course of action, is not an accident; but on which Is not the natural and probable consequence of an act, or course of action, Is produced by accidental means, and is an accident.
In Error to the Circuit Court of the United States for the Eastern District of Missouri. F. N. Judson (C. S. Taussig and Louis R. Tatum, on the brief), for plaintiff in error. S.L. Swarts (E. M. Merriman and George H. Sanders, on the brief), for defendant in error. Before SANBORN and THAYER, Circuit Judges, and PHILIPS, District Judge. SANBORN, Circuit Judge. The Western Commercial Travelers' Association, the plaintiff in error, has sued out a writ to reverse a judgment against it npon a certificate of insurance against accident which it issued to Freeman O. Smith, one of its members, for the benefit of
SJ;I1tth, the defendant in error., .04 jury. was, wllived, the court and made,'i;l, finding' of the. facts, 'and tile: tlle the judgment (1)' cause spow that immed,iate accident pr injurY,wlls not requiJ;ed, by. the policy, and (2) they, fall to !s40wtbat the death offuemember was "by bodIly injuries byexterna1, llndaccident;ilm£\ans." , 'd?,hese are the to 'questions Which appear from the 111eadingsllnd tbefindings: The certIficate upon which the suit is based secured to the member, Freeman 0 .. Smith, indemnity in various amounts for total disability, for the loss of an arm or a leg, or one arm and one leg, and for the loss of both arms or both legs, bYllccident; and it also secured to his peneficiary, .thedefepdant in error, indemnity for his death produced "by bodily injuries effected by external; violent, and aocidental means" alone. It contained. this provision:
"In the event of any accIdent or Injury for whIch any claIm ,spall be made under this ceJ;tl1icate" or,ln case of death resulting therefrom, ImmedIate notice shall be given In addrE)ssed to the secre1;ary,at St. Louis, Missouri, stating fullnaroe and address of the member,' number of 'certificate, Occupation, and name and ,address of the attending physIcian, with fUll particulars of. the accIdent or injury, and failure to give such invalidate aIlcIaim under the certificate; and unless d.irect, and affirmative proof of. the d,ell-th oJ; duration of total disability shall be furnished the assoCiation within ninety (90) days from the happening of such accident, as per forms of proof furnished, and questions prepared on 'same by the board. of directors of. the association, then all claims under this certificate shall be waived and forfeited to the association."
In the latter part of August,1895, while this certincate was in force, Freeman O. Smith, who was a strong aI\d healthy man, commenced wearing a pair of new shoes. About September 6, 1895, the friction without of one of the shoes against one of his feet, design on his part, produced an abrasion oHhe skin of one of his toes. He gave the abrasion reasonable attention, but it neverth,eless caused blood poisoning about September 26, 1895, which resulted in his death on October 3, 1895. Neither the deceased nor the defendant in error gave any noticeo! this accident or injury to the association before his death, but within a reasonable time thereafter due, notice th,ereof and of her claim under the certitacate was given to the association by, the defendant in error. The agreemerttof the parties was that the failure to give the notlce required by this certificate should invalidate all claim under it, and there canbeno:questionho.t that theser"ice of this notice was a ,condition precedent to the enforcement of any such claim. Insurance Co. v; Kyle, 11 Mo. 278, 289; McCullough, v. InsurmlCe Co., 113 Mo. GOG, 21 S. W. 207; McFarland v. Association, 124 Mo. 204, 27 S. W. 436. The real what was the notice exacted of the beneficiary by the contract and when was it to be given? The agreement was that, "in the event of any accident or injury for which any claim shall be made under this certificate, or in case of death result· given." the interpretation ing therefrom, immediate notice shall of this provision, the fact must be born.e in mind that all claims under which do not result in death this contract for accidents and
WESTERN COMMERCIAL TRAVELERS' ASS'S V. SMITH.
accrue to the member himself. The beneficiary of the death loss has no interest in them. It is only in a case in which death results from an accident 01.' injury that any claim in favor of the defendaut in error arises. In the nature of things, she cannot know whether she will have a claim until the member whose life is insured for her benefit is dead. Must she give notice of the accident or injury on account of which her claim may arise before she knows whether or not it will ever come into existence? A provision which exacts such a notice should be plain, clear, and unambiguous. Forfeitures are n()t favored in the law, and a strained and unnatural construction must not be given to this contract in order to impose one here. A stipulation could have easily been- drawn which would have plainly imposed upon this beneficiary the duty of giving such a notice. If this contract had simply omitted the words, "or in case of death resulting therefrom," and had provided that, "in the event of any accident or injury for which any claim shall be made under this certificate, notice of such accident or injury shall be given immediately after it happens," there would have been no doubt that the beneficiary was required to notify the association of the accident as soon as it occurred. If it had required only that, "in case of death resulting from any accident or injury for which any 'claim shall be made under this certificate, immediate notice shall be given," it would have been equally certain that she was not required it to ghre any notice until the death had supervened. As it seems 'to us to be intended to provide two different classes of notices for the ..two classes of elail1lS,-one an immediate notice of the accident or injury which does not result in death, the other an immediate notice of the death wliichresults from such an accident or injury, to be given by the beneficiary as soon as it occurs. If this is not the correct construction of the proVision, the words, "or in case of death resulting therefrom;" are without sigonificance or effect, because the stipulation, without those words, would require the beneficiary of a death loss to give notice of the accident or injury immediately after it occurred. There is no better canon for the interpretation of contracts than the rule that the court may put itself in the place of the parties to the agree· ment at the time it was made, and may then consider how its terms affected its subject-matter, and ascertain what those who made it intended thereby. Accumulator Co. v. Dubuque St. By. Co., 27 U. S. App. 364, 372, 12 n C. A. 37, 41, 42, and 64 Fed. 70, 74; VVesterveit v. Mohrenstecher, 40 U. S. App. 221, 227, 228, 22 C. C. A. 93, 95, and 76 Fed. 1i8, 121; Rockefeller v. Merritt, 40 U. S. App. 666, 675, 22 O. C. A.608, 613, 614, and 76 Fed. 909,915; Prentice v. Forwarding" 00., 19 U. S. App. 100, 110, 7 C. C. A. 293, 298, and 58 Fed. 437, 4'.1,3. When this is done, it can hardly be successfully maintained that the parties· to :this certificate intended to require the beneficiary of a loss by death under it to give notice of the accident or injury before the death .occurred and before her claim arose. When the provision, "in the event of any accident or injury for which any claim shall be made under thisicertificate, orin case of death resulting therefrom, immediate notice shall be given," is read in the light of the even.ts to which it refers, and of the relation of the parties to the contract t-o each other, its
natural and Qbvious meaning is that, in the event of any.accident or injury which shall not result in death, immediate p.oti<;e qf such accident or injury shall be given, or, in the case of death resulting from any such accident or; injury, immediate notice of such (teath shall be given, because in the one case it is the injury, and in the other it is the death, which conditions the existence of the claim. The conclusion is that this certificate required no notice of the accident or injury to be given to the association by the beneficiary of the death loss before the death occurred, and the due notice which th,e court finds she gave immediately after the death was a sufficient compliance with this stipulation of the agreement. It is earnestly contended, however, that the death was not caused by bodily injuries effected by external, violent, and accidental means (1) because the disease of blood poisoning was the cause, and the abrasion of the skin of the toe was only the occasion, the locality in which the disease first appeared, and (2) because the abrasion of the skin was not an accident, but was made in the ordinary course of things. The contract does not differ, in respect to the subject presented by this proposition, from those which have been repeatedly considered by this court, and we state its legal effect briefly, because the reasons and authorities in support of our views here have been frequently set forth in the opinions of this court which are cited below. If the death was caused by a disease, without any bodily injury inflicted by external, violent, and accidental means, as in the case of the malignant pustule (Bacon v. Association, 123 N. Y. 304, 25 N. E. 399), and as in the case of sunstroke (Sinclair v. Assurance Co., 3 El. & EI. 478; Dozier v. Casualty Co., 46 Fed. 446), the association was free from liability by the express terms of the certificate. If the deceased suffered an accident, but at the time he sustained it he was already suffering from a disease or bodily infirmity, and if the accident would not have caused his death if he had not been affected by the disease or infirmity, but he died because the accident ag-gravated the disease, or the disease aggravated the effects of the accident, as in the case of the insured who was subject to such a bodily infirm· Hy that a short run, followed by stooping, which would not have injured a healthy man, produced apoplexy (Insurance Co. v. Selden, 24 C. C. A. 92, 78 Fed. 285), the association was exempt from liability, because the death was caused partly by disease and partly by accident. If the death was caused by bodily injuries effected by external, violent, and accidental means alone, the association was liable to pay the promised indemnity. If the death was caused by a dis· ease which was not the result of any bodily infirmity or disease in existence at the time of the accident, but which was itself caused by the external, violent, and accidental means which produced the bodily injury, the association was equally liable to pay the indemnity. In such a case, the disease is an effect of the accident, the incidental means produced and used by the original moving cause to bring about its fatal effect, a mere link in the chain of causation between the acci· dent and the· death; and the death is attributable, not to the disease, but to the causa causans, to the accident alone. Insurance Co. v. MeHck, 21 U. S. App. 547, 560, 561, 12 C. C. A.544, 552, and 65 Fed.
178,186 jRailway 00. v. Oallaghan, 12 U. S. App. 541, 550, 6 O. O. A. 205, 210, and 56 Fed. 988, 994; Railway 00. v. Kellogg, 94 U. S. 469,475; Association v. Shryock, 36 U. S. App. 658,663,20 O. C. A. 3, 5, and 73 Fed. 774, 776. Now, the finding of the facts made by the trial court is conclusive in this c3,se, and the only question here presented is whether those facts warrant the judgment below. That court has found that the deceased was an exceptionally strong and healthy man when the abrasion in question was produced. It has found that the wearing of the new shoe produced the abrllllion on September 6, 1895, that this abrasion was the cause of blood poisoning on September 26, 1895, and that the blood poisoning produced the death on October 3, 1895. The question whether the death was produced by the abrasion or by the disease is, therefore, extrac1ed from this case. There is no ground for the contention that the disease of blood poisoning was an intervening and independent cause of the death, because the finding of the court below is that that disease was a mere link in the chain of causation between the abrasion which produced it and the death which it produced. The only question remaining, therefore, is whether or not the abrasion of the skin of the toe was produced by accidental means. If it was, the death wag so produced; and if it was not, there was no accident, and consequently no aause of action. The contract was that the association would pay the promised indemnity for any death caused "by bodily injuries effected by external, violent, and accidental means." There is no claim that the friction of the shoe which caused the abrasion was not external and violent. The contention is that it was not accidental. The significance of this word "aecidental" is best perceived by a consideration of the relation of causes to their effects. The word is descriptive of means which produce effects which are not their natural and probable consequences. The natural consequence of means used is the coosequence which ordinarily follows from their use,-the result which may be reasonably anticipated from their use, and which ought to be expected. The probable consequence of the use of given means is the consequence which is more likely to follow from their use than it is to fail to follow. An effect which is the natural and probable consequence of an act or course of action is not an accident, nor is it produced by accidental means. It is either the result of actual design, or it falls under the maxim that every man must be held to intend the natural and probable consequence of his deeds. On the other hand, an effect which is not the natural or probable consequence of the means which produced it, an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of those means, an effect which the actor did not intend to produce and which he cannot be charged with the design of producing under the maxim to which we have adverted, is produced by accidental means. It is produced by means which were neither designed nor calculated to cause it. Such an effect is not the result of design, cannot be reasonably anticipated, is unexpected, and is produced by an unusual combination of fortuitous circumstances; in other words, it is produced by accidental means.
Co. v. Elliott, 12 U. S. App. 381, 386, 387, 389, 5 C. C. A. 347, .350, 35.1,353, 55 Fed. 949, 952,953, 955. . Was the abrasion of the skin of the toe of the deceased the natural and probable consequence of wearing new shoes? It must be conceded that new shoes are not ordinarily worn with the design of oCa.usingabrasions of the skin of the feet, and the trial court has found that the abrasion upon the toe of the deceased was produced unexpectedly, and without any design on his part to cause it. An abrasion of the skin, certainly, is not the probable consequence of the use of new shOes; for it cannot be said to fQIlow such use more frequently than it fails to follow it. Nor can snch an abrasion be said to be :he natural consequence' of wearing such shoes,-the consequence which ()rdinarily follows, or which might be rea,8'Onably anticipated. Row, tnen, can it fail to be the chance result of accidental means,means not designed or calculated to produce it? If the deceased, without, design, had slippgd, and caused an abrasion of his skin, as he was Wl:j,lking down tnestreet, or punctured the skin of his foot by stepping On a nail in his l'oom, or had pierced it with a nail in his snoe .as be was drawing it upon his f()ot, there could have. been no doubt that these injuries were produced by accidental means; and it is difficult to understand why an abrasion of theskili,produced peetedly and without design, by friction caused by wearing a new shoe, not fall within the same category. . In McCarthy v. Insurance Co., 8.BlSiS. 362, Fed. Cas. No. 8,682, it is held tnat death from the rupture of a blood vessel caused by swinging .Indian clubs for exercise may he a death from bodily injury caused by accidental means. In Martin v. Insurance Co., 1 Fost. & F. 505, a total disability caused by straining the back while lifting a heavy burden was declared tobe a disability produced by accident, In Insurance Co. v. Burroughs, 69 Pa, St. 43, 51, the court said that an accident is "an event that takes place without one's foresight or expectation; an event which proceeds from an unknown cause, or is an unusual effect of a known cause, and tnerefore not expected; chance; casualty; contingency,"-and held that a strain of the abdominal muscles, produced by pitching ha,Y, wnich caused an inflammation that resulted in death, was an .accident. Death by drowning, by invot untarily innaling illuminating gas, or by fright is death by accidental means. Trew v. Assurance 00., 6 Hurl. & N. 839; Mallory v. surance Co., .47 N. Y. 52; Paul v. Insurance Co., 112 N. Y. 472, 20 N.R 347; McGlinchey v. Oasualty Co., 80 Me. 251, 14 Atl. 13. In Insurance Co. v. Melick, 27 U. S. App. 547, 12 C. C. A. 544, and.65 Fed. 178, tms court affirmed a judgment based upon a verdict that a death caused by lockjaw, which .was produced by a shot wound un· expectedly inflicted upon bimself by the deceased, Without design, was a death caused l;>y bodilyi:o.jury by accidental means alone. In Association v. Barry,131 U. S. 100, 9 Sup. Ot. 755, three persons jumped from the same nlatform at the same time and place. Two of them alighted in safety, while tne third suffered a stricture of the duodenum whichprodiIceda disease which caused his death. The supre,me court. affirm.ed a, founded upon a verdict that. bis death was tbe result of bodily Injuries effected through external,
violeht,and accidental means, ,and 'approved; an instruction to the Jury that: " . ' '. ..,. .. . . :.i '
"The term 'accidental' was used in the· policy in Its ordinary, popular ilense, as meaning 'happening by chance; unexpcetedly taking place; not according to the usual course of things; or not as expected'; that, if a result is such as follows from ordinary means, voluntarily employed, ill a not unusual or unexpected way, It cannot be called a result effected by aceidental means; but that if, in the act which precedes full injury, something ullforeseen, ,upexpected, unusual occurs, which produces the injury, then the injury has resulted through accidental means;"
We are unable to distinguish .theCllse at bar from those to which we have referred, and the case last is of controllingauthority in, this court. The abrasion ·of the skin of the toe' .of the deCeased was unexpectedly caused,. without design on his part,by unforeseen, unusual, and unexpected friction in the act of wearing the shoe which preceded the injury. It was not the natural or probable :consequence of that act, and it W3,s, produced by accidental meanS. The judgment below must be affirmed, with costs; andit is sO ordered.
STAPYLTON v. TEAGUE. v. ANDERSON et al. OARMICHAEL.
(Circuit Court of Appeals, Fifth Circuit. "February 15, 1898.) Nos. 602, 603, and 6.04.
BILLS AND NOTES-AcCOMMODATION PAPER-NATIONAL BANK RECEIVER"
.A ,national bank receiver cannot recover upon notes, ,made for the accommo.dation and sole benefit of the bank, without consideration.
In Error to the Circuit Court of the United States for the Southern District of Florida. These were three suits brought by G. C. Stapylton, as receiver of the First National Bank of Ocala, upon notes made for the accommodation of the bank. Judgments were given for the defendants in. the court below, and the plaintiff sued out these writs of error. J. O. Cooper, for plaintiff in error. R. Liggett,for R. L. Anderson and others. Before PARDEE and McCORMICK, Circuit Judges, and SWAYNE, District Judge.
PARDEE, Circuit Judge. These three cases are alike in the controlling facts, and may be disposed of in one opinion. On the undisputed facts in the case, the notes sued on. were given without consideration and for the accommodation and advantage of the First National Bank of Ocala. The bank had full notice. of this, if it is possible to charge a bank with notice to and the knowledge of its managing officers. The bank was not an innocent holder, nor even a holder for value, and to allow a recovery in the interest of the bank 'Yould be the grossest injustice. The receiver bringing these suits stands in .the sho\"s of the bank. The trial judge directed a verdict for the defendants; and, as in no aspect of the case do we think the