Opinion,
Me. Justice Stereett:
The undisputed facts, upon which the jury in this case was instructed to find for the plaintiff the full amount of his claim, are briefly as follows :
On June 4, 1889, the plaintiff’s intestate, John W. Moore, received and paid for the policy of insurance on which this suit was brought, a copy of which will be found in the record. Returning to his boarding house, the same evening, he informed his landlady that he had had no dinner, and requested that his supper be prepared. He then went to the well in the open yard for a drink, and finding that the pump required priming with water, he -remarked that he would fix it, so as to obviate that difficulty in the future. After procuring a hatchet, and removing planks from the opening at the top, he descended into the dug-out portion of the well, which was four or five feet wide and only ten or twelve feet deep, for the purpose of closing a small opening in the iron pipe, about midway down. A few minutes later, his lifeless remains were found at the bottom of the well. He died from asphyxia or suffocation due to the accidental and unconscious inhalation of carbonic acid or other deadly gas that had unexpectedly accumulated in the dug-out portion of the shallow well.
[90] The well, with which deceased was familiar, and in which he had been shortly before, was one of those known as a “ driven well,” made by driving an iron pipe into the ground to the depth, in this case, of about forty feet. For the distance of about ten or twelve feet from the top, the earth around the iron pipe was dug out so as to form as above stated, an open well, of about four or five feet in diameter, in which there was little or no water. (The top of the well was covered with plank. The deceased was a. strong, healthy man. His sudden and wholly unexpected death, under the circumstances above stated, and within a few hours after he had procured the policy of insurance, undoubtedly resulted from external, violent, and accidental injuries or means, and without any conscious or voluntary act on his part. There was no evidence, nor was it even suggested, that he had committed suicide, or that he was wanting in reasonable care, or that he voluntarily exposed himself to danger. In describing the condition in which he found the body of deceased the physician who made the post-mortem examination testified:
“ The general surface of the body was of a livid bluish color. The lips and tongue were blue. The right side of the head was partially distended with dark blood; the left side was nearly empty. The lungs contained more blood than they would under different circumstances; they were somewhat congested. The pulmonary arteries were distended with blood. The liver was slightly congested, and. also the kidneys; there was, however, no disease of the kidneys, no disease of any of the internal organs.....His death was caused by asphyxia, due to the inhalation of gas.”
If the latter undisputed and undoubtedly correct conclusion of fact needed any confirmation, it may be found in the testimony as to the effect of the same noxious gas on those who went to the relief of the deceased, and assisted in removing his remains from the well. It shows how narrowly they escaped a similar violent and accidental death.
The notice and proofs of death were full and complete. Their sufficiency was not even questioned.
In view of the undisputed facts, of which the above is an outline, the learned president of the Common Pleas refused to affirm defendant’s points for charge, some of which are predicated [91] of the foregoing facts, and instructed the jury that upon the undisputed facts before them the plaintiff was entitled to recover, and there was accordingly a verdict and judgment in his favor. This action of the court in refusing defendant’s points, and instructing the jury in plaintiff’s favor, are the subjects of complaint in the several specifications of error.
The first and main point was as follows:
“ The clause in the policy of insurance sued on, to wit, ‘ This insurance shall not cover.....death or injury resulting from or attributable partially or wholly to.....inhalation of gas,’ applies to the case of death resulting from asphyxia caused by inhaling gas accumulated at the bottom of the well.”
This in connection with the remaining seven points, was rightly refused. According to the undisputed facts above referred to, the death of the insured was caused by external, violent, and accidental means, and without any conscious or voluntary act on his part. No one, knowing, as he did, the shallowness of the dug-out portion of the well, would ever suspect the presence of noxious gas therein.' Doubtless, he never for a moment contemplated the slightest danger. His death was purely accidental; quite as much so as if he had been suddenly and unexpectedly engulfed in water, and drowned. The deadly but invisible gas by which he was unconsciously and accidentally enveloped was undoubtedly the external and violent cause of his injury and death. According to the physician’s testimony, above quoted, its violent effect upon the vital organs of the deceased was plainly visible at the time of the postmortem examination.
As was well said in Paul v. Insurance Co., 112 N. Y. 472, which in principle rules this case: “As to the point raised by appellant, that the death was not caused by external and violent means, within the meaning of the policy, we think it a sufficient answer that the gas in the atmosphere, as an external cause, was a violent agency, in the sense that it worked upon the intestate so as to cause his death. That a death is the result of accident, or is unnatural, imports an external and violent agency as the cause.” In that case, the policy on which suit was brought provided that the insurance should not extend to death caused “ bjr inhaling gas.” It appeared that the insured was found dead in bed. Gas had escaped in the room, and death was [92] caused by breathing the atmosphere of the ro.om filled with gas. It was held that death was not caused by the inhaling of gas, within the meaning of the policy. The company relied upon the same narrow and technical defence that is made by the defendant in this case. In an able opinion, reported in 45 Hun 313, the learned judge of the General Term, whose judgment was afterwards affirmed by the Court of Appeals, said, inter alia:
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Opinion,
Me. Justice Stereett:
The undisputed facts, upon which the jury in this case was instructed to find for the plaintiff the full amount of his claim, are briefly as follows :
On June 4, 1889, the plaintiff’s intestate, John W. Moore, received and paid for the policy of insurance on which this suit was brought, a copy of which will be found in the record. Returning to his boarding house, the same evening, he informed his landlady that he had had no dinner, and requested that his supper be prepared. He then went to the well in the open yard for a drink, and finding that the pump required priming with water, he -remarked that he would fix it, so as to obviate that difficulty in the future. After procuring a hatchet, and removing planks from the opening at the top, he descended into the dug-out portion of the well, which was four or five feet wide and only ten or twelve feet deep, for the purpose of closing a small opening in the iron pipe, about midway down. A few minutes later, his lifeless remains were found at the bottom of the well. He died from asphyxia or suffocation due to the accidental and unconscious inhalation of carbonic acid or other deadly gas that had unexpectedly accumulated in the dug-out portion of the shallow well.
[90] The well, with which deceased was familiar, and in which he had been shortly before, was one of those known as a “ driven well,” made by driving an iron pipe into the ground to the depth, in this case, of about forty feet. For the distance of about ten or twelve feet from the top, the earth around the iron pipe was dug out so as to form as above stated, an open well, of about four or five feet in diameter, in which there was little or no water. (The top of the well was covered with plank. The deceased was a. strong, healthy man. His sudden and wholly unexpected death, under the circumstances above stated, and within a few hours after he had procured the policy of insurance, undoubtedly resulted from external, violent, and accidental injuries or means, and without any conscious or voluntary act on his part. There was no evidence, nor was it even suggested, that he had committed suicide, or that he was wanting in reasonable care, or that he voluntarily exposed himself to danger. In describing the condition in which he found the body of deceased the physician who made the post-mortem examination testified:
“ The general surface of the body was of a livid bluish color. The lips and tongue were blue. The right side of the head was partially distended with dark blood; the left side was nearly empty. The lungs contained more blood than they would under different circumstances; they were somewhat congested. The pulmonary arteries were distended with blood. The liver was slightly congested, and. also the kidneys; there was, however, no disease of the kidneys, no disease of any of the internal organs.....His death was caused by asphyxia, due to the inhalation of gas.”
If the latter undisputed and undoubtedly correct conclusion of fact needed any confirmation, it may be found in the testimony as to the effect of the same noxious gas on those who went to the relief of the deceased, and assisted in removing his remains from the well. It shows how narrowly they escaped a similar violent and accidental death.
The notice and proofs of death were full and complete. Their sufficiency was not even questioned.
In view of the undisputed facts, of which the above is an outline, the learned president of the Common Pleas refused to affirm defendant’s points for charge, some of which are predicated [91] of the foregoing facts, and instructed the jury that upon the undisputed facts before them the plaintiff was entitled to recover, and there was accordingly a verdict and judgment in his favor. This action of the court in refusing defendant’s points, and instructing the jury in plaintiff’s favor, are the subjects of complaint in the several specifications of error.
The first and main point was as follows:
“ The clause in the policy of insurance sued on, to wit, ‘ This insurance shall not cover.....death or injury resulting from or attributable partially or wholly to.....inhalation of gas,’ applies to the case of death resulting from asphyxia caused by inhaling gas accumulated at the bottom of the well.”
This in connection with the remaining seven points, was rightly refused. According to the undisputed facts above referred to, the death of the insured was caused by external, violent, and accidental means, and without any conscious or voluntary act on his part. No one, knowing, as he did, the shallowness of the dug-out portion of the well, would ever suspect the presence of noxious gas therein.' Doubtless, he never for a moment contemplated the slightest danger. His death was purely accidental; quite as much so as if he had been suddenly and unexpectedly engulfed in water, and drowned. The deadly but invisible gas by which he was unconsciously and accidentally enveloped was undoubtedly the external and violent cause of his injury and death. According to the physician’s testimony, above quoted, its violent effect upon the vital organs of the deceased was plainly visible at the time of the postmortem examination.
As was well said in Paul v. Insurance Co., 112 N. Y. 472, which in principle rules this case: “As to the point raised by appellant, that the death was not caused by external and violent means, within the meaning of the policy, we think it a sufficient answer that the gas in the atmosphere, as an external cause, was a violent agency, in the sense that it worked upon the intestate so as to cause his death. That a death is the result of accident, or is unnatural, imports an external and violent agency as the cause.” In that case, the policy on which suit was brought provided that the insurance should not extend to death caused “ bjr inhaling gas.” It appeared that the insured was found dead in bed. Gas had escaped in the room, and death was [92] caused by breathing the atmosphere of the ro.om filled with gas. It was held that death was not caused by the inhaling of gas, within the meaning of the policy. The company relied upon the same narrow and technical defence that is made by the defendant in this case. In an able opinion, reported in 45 Hun 313, the learned judge of the General Term, whose judgment was afterwards affirmed by the Court of Appeals, said, inter alia:
“Was the death of the intestate caused by or through ‘external, violent, and accidental means,’ within the language of the policy ? .... We should say the death was due to external and violent means as clearly as drowning.....The cause of death came from outside, as surely as would a rifle ball, or water in the case of drowning. The escape of gas into the room was violent, in the same sense that would be the flow of water into a wrecked vessel. In either case, the external means constitute the cause which produces death. It is a violent death, produced by an external power, not natural. Some poisons, such as opium.and chloral, produce no'violent action on the human system. The man who descends into a well of carbonic-acid gas is killed with no greater violence, perhaps, than was the intestate. Yet in all these cases, the result would be called a violent death.....We also think the words‘inhaling of gas’ were used to designate those common uses of gas in dentistry, surgery, etc.....Evidently an exception from death caused by a surgical operation was not broad enough to include the use of anaesthetics preparatory to the operation. It contemplated a voluntary and intelligent act by the assured, not an involun-. tary and unconscious act.”
On this question, the Court of Appeals, in affirming the decision of the General Term, said:
“ A careful consideration of this instrument, and of the scope and design of its provisions, leads us to the conclusion that appellant must fail in its contention..... In expressing its intention not to be liable for death from ‘ inhaling of gas ’ the company can only be understood to mean a voluntary and intelligent act of the insured, and not an involuntary and unconscious act. Read in that sense, and in the light of the context, these words must be interpreted as having reference to medical or surgical treatment, in which, ex vi termini, would be included the dentist’s work or a suicidal purpose. Of [93] course, the deceased must have, in a certain sense, inhaled gas ; hut, in view of the finding that death was caused by accidental means, the proper meaning of the words compels, as does the logic of the thing, the conclusion that there was not that voluntary or conscious act, necessarily involved in the process of inhaling. An accident is the happening of an event without the aid and the design of the person, and which is unforeseen..... To inhale gas requires an act of volition on the person’s part before the danger is incurred. Poison may be taken by mistake, or poisonous substances may be inadvertently touched; but, whatever .the motive of the insured, his act precedes either fact..... If the policy had said that it was not to extend to any death caused wholly or in part by gas, it would have expressed precisely what the appellant now says is meant by the present phrase, and there could have been no room for doubt or mistake. Policies of insurance are to be liberally construed, and, as in all contracts, conditions are to be construed strictly against those for whose benefit they are reserved.”
The principles, so well stated and enforced in the cases above cited, were afterwards approvingly considered in Bacon v. Association, 123 N. Y. 304. In further support of the same principles, reference might be made to other authorities, among which are: May on Insurance, 631, in which reference is made to Trew v. Assurance Co., 6 H. & N. 839 ; Winspear v. Insurance Co., 6 Q. B. D. 42 (29 Eng. R. 488); Insurance Co. v. Crandal, 120 U. S. 532; Mallory v. Insurance Co., 47 N. Y. 52; North American Ins. Co. v. Burroughs, 69 Pa. 43; McGlinchey v. Casualty Co., 80 Me. 251; Eggenberger v. Association, 41 Fed. R. 172; U. S. Mut. Ass’n v. Newman, (Va.) 3 S. E. Rep. 805; but further elaboration is unnecessary.
This case is not ruled by Pollock v. Accident Ass’n, 102 Pa. 230, on which defendant relies. While that case may well stand upon its own peculiar facts, we think the present case is clearly distinguishable in its controlling facts, as well as in the principles applicable to them. In that case, the injury did not result from external, violent, and accidental means. The fatal drug was voluntarily and intentionally taken by the deceased. In deciding that case, this court never could have intended to lay down the broad rule, that in construing an accident policy [94] there is no distinction between external, violent, and accidental causes of death, and those cases in which death results from voluntary acts. What was decided in that case was that, under the various clauses of the policy sued on, there could be no recovery, and it was unimportant whether the means arose from the designing act of the insured or otherwise.
Another ground of defence suggested in defendant’s fifth, sixth and seventh points was that the deceased was injured in an occupation or exposure classed by the company as more hazardous than that specified in the policy, etc. The points referred to appear to be predicated of testimony which was improperly before the jury. The company, in disregard of the provisions of the act of May 11, 1881, P. L. 20, had failed to attach to the policy copies of the by-laws or application, and should not have been permitted, against plaintiff’s objection, to give them in evidence. The act was passed in the interest of honesty and fair dealing, and its provisions should be strictly enforced. We have no doubt they apply to such companies as the defendant.
Without further referring to the specifications of error, it is sufficient to say that neither of them is sustained. The deceased was accidentally, violently, and fatally asphyxiated by the unknown presence of a fluid foreign to his person. If that fluid had been oil, smoke, water, or molten metal, the result wouid have been substantially the same. Death caused, not so much by the inhalation of the fluid, as by its action in excluding life-supporting air, would have inevitably resulted. A fair construction of the policy leads to the conclusion reached by the court below, that death resulting from causes such as killed the intestate is not within any of the exemptions relied on by the company.
Judgment affirmed.