The opinion of the court was delivered, October 9th 1871, by
Williams, J.
In this case the jury have found, on sufficient evidence, that while the insured was pitching hay, the handle of the pitchfork slipped, through his hands and struck him on the bowels, inflicting an injury, which produced peritoneal inflammation, in consequence of -which he died; that the blow which he received from the fork-handle was an accident and the cause of his death. The ease, therefore, comes directly within the terms of the policy declared on. But it is objected that the plaintiff was not entitled to recover, because no sufficient preliminary proof was furnished to the company that the death of the insured was caused solely by an accidental injury; that the injury, described in the preliminary proofs of loss furnished by the plaintiff, is not an accidental injury within the meaning of the policy, and is not covered by its provisions. The policy provides that no payment shall be due, and no claim be made under it, on account of the accidental loss of life of the assured, unless notice of the injury and of the death shall be given to the company within thirty days after the happening of either, and sufficient proof furnished said company of such injury, and that such death was caused solely by such accidental injury, and ensued within three months from the happening theredf. Substantially the same provision is also contained in the fourth condition of the policy: In case of injury producing death of the assured, happening as aforesaid by accident, within the meaning of this policy, the party for whose benefit the insurance is made shall within thirty days thereafter give notice of the same in writing, with sufficient proof of such injury and of death.
Notice was given to the company on the 12th of August 1867, within the time limited by the policy, that the assured came to his death by accident on the 14th of July, by an injury received in the bowels, while working in a hay-field, producing peritoneal inflammation, which resulted fatally. And in proof thereof, the affidavits of the plaintiff and attending physician were subsequently furnished to the company. No objection was made to the affidavits, on the ground that they were not furnished intime, and, under the evidence, no such objection could have been properly made. The only objection then and now made to the affidavits, is that they do not show that the assured “ died as the result of any injury received by accident.” But if the facts stated in the affidavits are true, why do they not make out a prima; facie case of death resulting from an injury occasioned by accident? [51] The plaintiff’s affidavit expressly avers “ that her late husband died in consequence of an accident which happened, on the 9th of July 1867, on this wise: said deceased, on the day aforesaid, was assisting in unloading hay in Hopewell township, New Jersey, at his grandfather’s, where he had gone on a visit, when he accidentally strained himself. He immediately complained of severe pain, and a physician was summoned. All was done for his relief and recovery that could be, without success. He lingered till the fourteenth of said month, when he died, and the said accident was the direct cause of his death.” And the attending physician, after stating in his affidavit that he personally knew the assured, says that he “ knows that he was killed by accident on the 14th day of July last; and further, that the accident was occasioned by exertions made in assisting in hauling in hay, which injured the abdominal muscles, and produced peritoneal inflammation and all its concomitant symptoms, which resulted in his death on the 14th of July last.” If the facts set forth in these affidavits be true, and they are perfectly consistent and reconcilable, do they not show with reasonable certainty that the death of the assured was caused by an accident ? Taking both affidavits together they substantially allege that the assured, while assisting in hauling in, and unloading hay, accidentally strained himself, injuring his abdominal muscles and producing peritoneal inflammation, which resulted in his death; and, that the said accident was the direct cause of his death; and if so, can there be any doubt as to the sufficiency of the preliminary proof? But it is said, that if the assured strained himself while unloading hay it was not an accident insured against within the meaning of the policy. Why not, if he accidentally strained himself, as is averred in the plaintiff’s affidavit ? Why is not death resulting from an accidental strain as much within the meaning of the policy, as death produced by any other accidental cause ? If the injury be accidental, and the result of it death, what matters it whether the injury is caused by a strain or blow ? 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 therefore not expected; chance; casualty; contingency.” And accidental signifies, “ Happening by chance or unexpectedly; taking place not according to the usual cause of things ; casual; fortuitous. We speak of a thing as accidental when it falls to us as by chance and not in the regular course of things; as an accidental meeting, an accidental advantage, &c.” Webster’s Dictionary ad vería. If then these words, as used in the policy, are to be understood in their plain and ordinary meaning as thus defined, they include death from any unexpected event which happens as by chance, or which does not take place according to the usual course of things. And there is no more reason for regard[52] ing an injury of the abdominal muscles, caused by an unexpected blow, an accident than an injury caused by a casual and unlooked for strain. If the death of the assured resulted from an accidental strain, then it was not “ caused by natural disease.” And if it resulted from any accidental strain, it does not follow that it was caused by “unreasonable imprudence,” or “the doing of an unlawful act,” and there is. nothing in the affidavits from which such an inference can be fairly drawn. Taking the facts to be as stated in the affidavits they undoubtedly make out a primá facie case of death resulting from an injury accidentally received; and if so, the preliminary proof furnished by the plaintiff must be regarded as sufficient, and there was no error in refusing the defendant’s fourth and fifth points.
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The opinion of the court was delivered, October 9th 1871, by
Williams, J.
In this case the jury have found, on sufficient evidence, that while the insured was pitching hay, the handle of the pitchfork slipped, through his hands and struck him on the bowels, inflicting an injury, which produced peritoneal inflammation, in consequence of -which he died; that the blow which he received from the fork-handle was an accident and the cause of his death. The ease, therefore, comes directly within the terms of the policy declared on. But it is objected that the plaintiff was not entitled to recover, because no sufficient preliminary proof was furnished to the company that the death of the insured was caused solely by an accidental injury; that the injury, described in the preliminary proofs of loss furnished by the plaintiff, is not an accidental injury within the meaning of the policy, and is not covered by its provisions. The policy provides that no payment shall be due, and no claim be made under it, on account of the accidental loss of life of the assured, unless notice of the injury and of the death shall be given to the company within thirty days after the happening of either, and sufficient proof furnished said company of such injury, and that such death was caused solely by such accidental injury, and ensued within three months from the happening theredf. Substantially the same provision is also contained in the fourth condition of the policy: In case of injury producing death of the assured, happening as aforesaid by accident, within the meaning of this policy, the party for whose benefit the insurance is made shall within thirty days thereafter give notice of the same in writing, with sufficient proof of such injury and of death.
Notice was given to the company on the 12th of August 1867, within the time limited by the policy, that the assured came to his death by accident on the 14th of July, by an injury received in the bowels, while working in a hay-field, producing peritoneal inflammation, which resulted fatally. And in proof thereof, the affidavits of the plaintiff and attending physician were subsequently furnished to the company. No objection was made to the affidavits, on the ground that they were not furnished intime, and, under the evidence, no such objection could have been properly made. The only objection then and now made to the affidavits, is that they do not show that the assured “ died as the result of any injury received by accident.” But if the facts stated in the affidavits are true, why do they not make out a prima; facie case of death resulting from an injury occasioned by accident? [51] The plaintiff’s affidavit expressly avers “ that her late husband died in consequence of an accident which happened, on the 9th of July 1867, on this wise: said deceased, on the day aforesaid, was assisting in unloading hay in Hopewell township, New Jersey, at his grandfather’s, where he had gone on a visit, when he accidentally strained himself. He immediately complained of severe pain, and a physician was summoned. All was done for his relief and recovery that could be, without success. He lingered till the fourteenth of said month, when he died, and the said accident was the direct cause of his death.” And the attending physician, after stating in his affidavit that he personally knew the assured, says that he “ knows that he was killed by accident on the 14th day of July last; and further, that the accident was occasioned by exertions made in assisting in hauling in hay, which injured the abdominal muscles, and produced peritoneal inflammation and all its concomitant symptoms, which resulted in his death on the 14th of July last.” If the facts set forth in these affidavits be true, and they are perfectly consistent and reconcilable, do they not show with reasonable certainty that the death of the assured was caused by an accident ? Taking both affidavits together they substantially allege that the assured, while assisting in hauling in, and unloading hay, accidentally strained himself, injuring his abdominal muscles and producing peritoneal inflammation, which resulted in his death; and, that the said accident was the direct cause of his death; and if so, can there be any doubt as to the sufficiency of the preliminary proof? But it is said, that if the assured strained himself while unloading hay it was not an accident insured against within the meaning of the policy. Why not, if he accidentally strained himself, as is averred in the plaintiff’s affidavit ? Why is not death resulting from an accidental strain as much within the meaning of the policy, as death produced by any other accidental cause ? If the injury be accidental, and the result of it death, what matters it whether the injury is caused by a strain or blow ? 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 therefore not expected; chance; casualty; contingency.” And accidental signifies, “ Happening by chance or unexpectedly; taking place not according to the usual cause of things ; casual; fortuitous. We speak of a thing as accidental when it falls to us as by chance and not in the regular course of things; as an accidental meeting, an accidental advantage, &c.” Webster’s Dictionary ad vería. If then these words, as used in the policy, are to be understood in their plain and ordinary meaning as thus defined, they include death from any unexpected event which happens as by chance, or which does not take place according to the usual course of things. And there is no more reason for regard[52] ing an injury of the abdominal muscles, caused by an unexpected blow, an accident than an injury caused by a casual and unlooked for strain. If the death of the assured resulted from an accidental strain, then it was not “ caused by natural disease.” And if it resulted from any accidental strain, it does not follow that it was caused by “unreasonable imprudence,” or “the doing of an unlawful act,” and there is. nothing in the affidavits from which such an inference can be fairly drawn. Taking the facts to be as stated in the affidavits they undoubtedly make out a primá facie case of death resulting from an injury accidentally received; and if so, the preliminary proof furnished by the plaintiff must be regarded as sufficient, and there was no error in refusing the defendant’s fourth and fifth points.
Whether the plaintiff was entitled to recover on showing that the death of the assured resulted from an injury of the abdominal muscles, caused by a blow, and not by an accidental strain, is another question raised by the defendant’s third point, which we shall now proceed to consider. No objection was made to the admission of the evidence on the ground of variance, and the only question is whether the plaintiff, under the preliminary proof, was entitled to recover for death resulting from an accidental injury, shown to have been caused by a blow instead of a strain. The policy does not expressly require that preliminary proof shall be furnished of the mode and manner in which “ the injury producing death ” was inflicted; but only that “ sufficient proof be furnished of the injury and that such death was caused solely by such accidental injury.” The affidavit of the attending physician describes the injury which the assured received, and in consequence of which he died, precisely as it was proved by his testimony on the trial. The only difference between them is that in the former the cause of the injury is not stated otherwise than by terming it “ an accident,” and in the latter, it is shown to have been caused by an accidental blow from the handle of a pitchfork. But the injury, as described in both, is in all respects the same and its results are the same. If then “ the injury producing death ” is correctly described in the preliminary proof, why shall not the plaintiff be allowed to recover though she may have imputed it to a wrong cause, — to a strain instead of a blow ? It seems to us that under the terms of the policy the plaintiff is entitled to recover if she has given sufficient preliminary proof of the injury though she may have unwittingly ascribed it to a wrong cause. It is not such a variance as should be regarded as fatal. Undoubtedly there must be sufficient preliminary proof of the injury, that it was accidental, and the cause of the death of the assured. These requisites are all found in the preliminary proof furnished by the plaintiff in this case; and they are all that the policy requires. If the injury, as described in the affidavit of the attending physician, was the cause of the death of [53] the assured, 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.
But it is further obj ected to the plaintiff’s right of recovery that the assured did not give notice of the change of his occupation, nor pay the difference of premium for the extra hazard, as required by the second and third conditions of the policy, and therefore the contract became null and void. But there was no evidence that the assured had changed his occupation or business, and the learned judge before whom the case was tried rightly refused to submit the question to the jury. The assured, as was shown, while on a visit to his grandfather, had assisted in hauling in and unloading hay. But this was not a- change of his occupation or business within the meaning of the policy. To give to the word such a construction would prevent the assured from performing any act or service outside of his usual avocation or business without rendering the policy null and void. Such a construction would be unreasonable and absurd, and the defendant’s 1st and 5th points were properly refused.
The 1st, 2d, 3d, 5th and 8th assignments are not in accordance with the rules and must be disregarded; but if properly made there is nothing in them which would avail the plaintiff in error. The 6th and 7th assignments are not sustained, and there is nothing in them that calls for special notice. The questions presented by the remaining assignments (the 9th, 10th, 11th, 12th, 13th and 14th) have been already considered, and as we discover no material error in the record the judgment is affirmed.
Judgment affirmed.