This is a suit on an accident insurance policy and the appeal is from that part of the judgment in favor of the plaintiff and against the defendant for $100 per month, with legal interest thereon beginning December 14, 1930, for sixty consecutive months, or during the plaintiff's disability to perform any and every duty pertaining to his occupation and business, and for the further sum of $500 as attorney's fees and the costs of the suit. Plaintiff did not appeal from that part of the judgment rejecting his demand for double indemnity, and, as he has not answered the appeal, that issue has passed out of the case.
The material allegations of the petition are that on December 14, 1930, the plaintiff suffered an accidental injury to the right side of his abdomen, which produced a complete inguinal hernia that has continuously and totally incapacitated him from performing any and every duty pertaining to his occupation and business, and he seeks recovery under the provisions of sections (a) and (b) of part IV of the policy. These sections are as follows:
"Sec. (a) Or, commencing on date of the accident, for the period during which such injury alone shall wholly and continuously disable and prevent the Insured from performing any and every duty pertaining to his business or occupation, the Company will pay Accident Indemnity At The Rate Per Month *Page 980 Specified In Part I for a period not exceeding sixty consecutive months.
"Sec. (b) Or, if such injury shall not from date of the accident wholly disable the Insured, but shall within thirty days thereafter wholly disable him, or shall, commencing on date of the accident or immediately following total loss of time, prevent him from performing work substantially essential to the duties of his occupation, the Company will pay as indemnity for the continuous period of such disability caused thereby, Not Exceeding Six Consecutive Months, At The Rate Of One-Half Of Said Monthly Accident Indemnity."
The defendant excepted to the petition as not disclosing a cause of action. The exception was overruled and answer was filed. In its answer the defendant denies all of the allegations of fact stated supra, and on the trial proved by a preponderance of the evidence, and by disinterested witnesses, that from the date of the alleged accident to some time in the following February, when the mill closed down, the plaintiff continuously performed the duties his vocation and business required of him, and drew his salary regularly, without diminution thereof, for about two months. The fact is, therefore, established that the plaintiff lost no time, and that no total disability, within the intendment of the policy, manifested itself during those months. It is true that the plaintiff developed a hernia that necessitated his avoidance of work requiring the lifting of heavy objects, but the plaintiff's occupation and business was that of shop foreman, and, in that capacity, it was optional with him whether he lifted or abstained from lifting such objects. Moreover, the strain which *Page 981 caused the hernia, neither as to time or place, is shown with any degree of certainty. Plaintiff says that he felt the pain in his left side on December 14, 1930, while assisting, by the use of a lever, in lifting a heavy object, but he also says that he felt the same pain on a previous occasion while loading pipe in a freight car.
It should be noted that this is a suit for the recovery of indemnity insurance, and that recovery is possible only when the case, as presented, comes within the clauses of the contract relied upon. We well understand that Parker v. Weber-King Mfg. Co., 19 La.App. 177, 139 So. 660, was decided consistently with the liberal construction the law requires the courts to give to the Employers' Liability Act (Act No. 20 of 1914, as amended), but the principles applicable to that class of cases have no application to the case before us.
We have read the record carefully and find that plaintiff does not allege, neither has he offered any evidence to prove, that his hernia was caused solely by external, violent, and accidental means. All that the policy sued upon insures against is stated in part 1 thereof as follows:
"The effects resulting directly and exclusively of all other causes, from bodily injuries sustained during the life of this policy, solely through External, Violent and Accidental Means (excluding suicide, sane or insane, or any attempt thereat)," etc.
On the facts disclosed by the record we find that from December 14, 1930, until some time in the following February, the plaintiff lost no time, was on the job assigned to him daily, and received his regular wages of $150 per *Page 982 month; that he has not proved with reasonable certainty the time he suffered the injury which caused the hernia for which he claims indemnity; and that he has not proven, or attempted to prove, that the hernia was caused by violent and accidentalmeans.
It is the accepted rule that insurance contracts are construed against the insurer, and a liberal interpretation exempting or limiting the insurer's liability is not permitted. The rule is applicable where there is ambiguity in the contract, or where doubt of the essential facts to be established results from the state of the proof. Whether an injury results from violent andaccidental means or from means employed in the usual and accepted manner are distinct propositions. The plaintiff was insured against the effects of the former, but not against the effects of the latter.
In the case of Riley v. Interstate Business Men's Accident Association (Iowa) 152 N.W. 617, 619, the court said:
"There is a difference between an accidental result and an accidental cause. * * * It is apparent that to entitle one to recover, under a policy like the one in question, it is not sufficient to show that the death was accidental. Death is the result of some precedent act or condition. It is traceable to some cause. It is not sufficient, to make the cause accidental, that it appear that the resulting death was unanticipated, unforeseen, and not expected as a result of the act done. It must appear that that which happened to produce the result happened through accident, in order that the proper foundation may be laid for the recovery. The policy provides recovery in the event of death, but only where *Page 983 death results from bodily injuries effected solely by external, violent, and accidental means."
In Schmid v. Indiana T. Acc. Ass'n, 42 Ind. App. 483, 85 N.E. 1032, 1037, and Elsey v. Fidelity Cas. Co. (Ind. App.) 109 N.E. 413, the rule in Indiana is stated as follows:
"If the result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means," and "that, where an injury occurs as the direct result of intentional acts, it is not produced by accidental means."
The Indiana rule was followed by the federal courts in Lewis v. Iowa State Traveling Men's Ass'n (D.C.) 248 F. 602, affirmed in (C.C.A.) 257 F. 552.
In Horton v. Travelers Ins. Co., 45 Cal. App. 462, 187 P. 1070, the California Appellate Court held that: it is not enough to constitute "accidental means" that the injury is unexpected or unforeseen, but there must be something of an unexpected or unforeseen character in the means which produced the injury.
The cases cited are in accord with the text-writers, Couch, Cooley, and Joyce. See Couch on Insurance, p. 3958; Cooley's Brief on Insurance (2d Ed.), vol. VI, p. 5235; Joyce, on the Law of Insurance, vol. 5, p. 2863 et seq. Mr. Cooley says:
"A person may do certain acts, the result of which may produce unforeseen consequences, and may produce what is commonly called accidental injury; but when the means are exactly what he intended to use and used, *Page 984 the means are not accidental within the meaning of the policy."
In support of his views Mr. Cooley cites, in addition to the authorities we have cited supra, the following cases: Lehman v. Great Western Accident Ass'n, 155 Iowa, 737, 133 N.W. 752, 42 L.R.A. (N.S.) 562; Maryland Casualty Co. v. Spitz, 246 F. 817, 159 C.C.A. 119, L.R.A. 1918C, 1191; Tuttle v. Pacific Mut. Life Ins. Co., 58 Mont. 121, 190 P. 993, 16 A.L.R. 601; U.S. Fidelity Guaranty Co. v. Blum (C.C.A.) 270 F. 946, 947.
In the last-cited case the court said:
"There is a distinction between accidental death which may be an unexpected or unintentional result of a voluntary act, and death from accidental means, which must result from some unforeseen or unintended act."
To the same effect is Barnstead v. Commercial Travelers' Mut. Acc. Ass'n, 204 A.D. 473, 198 N.Y.S. 416; Kendall v. Travelers' Protective Ass'n, 87 Or. 179, 169 P. 751; Young v. Continental Casualty Co., 128 S.C. 168, 122 S.E. 577; American Accident Company v. Reigart, 94 Ky. 547, 23 S.W. 191, 21 L.R.A. 651, 42 Am. St. Rep. 374; Feder v. Iowa State Traveling Men's Ass'n, 107 Iowa, 538, 78 N.W. 252, 43 L.R.A. 693, 70 Am. St. Rep. 212; Preferred Accident Ins. Co. v. Patterson, 213 F. 595, 130 C.C.A. 175; Rock v. Travelers' Ins. Co., 172 Cal. 462,156 P. 1029, 1030, L.R.A. 1916E, 1197; 7 A.L.R. page 1136.
In the case of Rock v. Travelers' Ins. Co., the court said:
"A differentiation is made, therefore, between the result to the insured and the means which is the operative cause in producing this *Page 985 result. It is not enough that death or injury should be unexpected or unforeseen, but there must be some element of unexpectedness in the preceding act or occurrence which leads to the injury or death. Policies like the one before us have been before the courts in many cases, and the great weight of authority, we think, sustains the view which we have just expressed. Thus in Clidero v. Scottish Accident Ins. Co., 29 Scot. L.R. 303, Lord Adam said:
"`The question, in the sense of this policy, is not whether death was the result of accident in the sense that it was a death which was not foreseen or anticipated. That is not the question. The question is, in the words of this policy, whether the means by which the injury was caused were accidental means. The death being accidental in the sense in which I have mentioned, and the means which led to the death as accidental, are, to my mind, two quite different things. A person may do certain acts, the result of which acts may produce unforeseen consequences, and may produce what is commonly called accidental death, but the means are exactly what the man intended to use, and did use, and was prepared to use. The means were not accidental, but the result might be accidental.'"
We have made a diligent search and have found that the great weight of authority is in line with the authorities cited supra and with the excerpts we have quoted therefrom.
For the foregoing reasons we have reached the conclusion that the judgment appealed from should be avoided and reversed, and it is so decreed. It is further decreed that plaintiff's demands be rejected, and his suit dismissed, at his cost, in both courts. *Page 986
O'NIELL, C.J., is of the opinion that the judgment appealed from is correct.
On Rehearing.