Appellee's policy on the life of C. M. Hanna promised to pay his beneficiary (appellant wife) $500 on death from natural causes; providing for payment of an additional $500 in event of death from bodily injuries sustained solely through external, violent and accidental means. This suit was for recovery of $500 under the latter or double indemnity provision of the policy. *Page 909 On pre-trial and hearing of defendant's motion for judgment on the pleading, same was sustained; and upon entry of adverse judgment plaintiff has appealed.
Insured died about January 25, 1942, and the substance of appellant's pleadings in the District Court was that during the latter part of December 1941, and the first part of January 1942, her husband, C. M. Hanna, developed a common cold, for which he voluntarily took sulfanilamide tablets. Then, being seized with a chill, he called in a physician who prescribed sulfanilamide and aspirin without knowing or taking into account that the patient had, prior thereto, taken sulfanilamide and had built up within his system a condition which rendered further use of such tablets dangerous and poisonous to his life; that he was given the medicine without knowledge of what it contained or its effect on his system; and was thereby given by mistake an overdose of the sulfanilamide drug, which, when taken into his system, attacked and destroyed the red and white corpuscles of his body, proximately causing his death.
In the alternative, it was pled that if plaintiff be mistaken in the allegation that death was due to an overdosage of sulfanilamide, then, she says, that at the time of her husband's January illness the doctor prescribed aspirin every 2 to 4 hours, to be taken along with said sulfanilamide, and that at the time of taking said tablets, unknown to the physician and deceased, there existed within his body a certain intolerance to the sulfanilamide and aspirin, or to the combination of the two, which intolerance caused chemical reaction in the blood of C. M. Hanna, and, in some manner unknown to plaintiff — the exact medical description being for that reason not alleged — produced a destruction of the red and white blood corpuscles of his blood stream, thereby causing his death; all being within the terms of the double indemnity clause of defendant's policy as a death resulting from accidental means. By way of trial amendment, the following was further alleged: "* * * plaintiff says that the sulfanilamide tablets mentioned therein (were) poisonous to the insured and his system by reason of some unknown element in said tablets and drug, combining in some unknown element or condition of his body, but that ordinarily and under ordinary circumstances said drug, when taken, was not injurious, but reacted favorably to a person of normal condition, when taken in the amounts taken by the deceased; that said element in said drug injurious to the insured was unknown to the insured, and that said condition in insured's body, which combined with said drug, was unknown to the insured and that the cause of insured's death was the combination of the unknown element in said drug and the unknown element in insured's body, which was unexpected and unanticipated by the insured and by the physician who prescribed said drug."
Attached to the pleading was a copy of defendant's contract providing for the stated indemnity in event of death from bodily injuries sustained "solely through external, violent and accidental means." It will be noted that an over-dose of sulfanilamide by mistake was pled; alternatively, that because of unknown elements in both the drug and system of the assured, the fatal consequences of its taking was an event covered by the foregoing provisions of the policy. The only question for our determination here is whether, on face of the pleading, a cause of action has been alleged; the issue really centering around an appropriate construction of the term "accidental means", where the casualty is occasioned by intentional or voluntary action of the assured.
Many jurisdictions hold that if the means which cause an injury are voluntarily employed in the usual and intended way, the resulting injury, even though it be entirely unusual, unexpected and unforeseen, is not produced by accidental means; in short, that the means, as well as the result, must be accidental; Caldwell v. Travelers' Ins. Co., 305 Mo. 619,267 S.W. 907, 39 A.L.R. 56; McFarland v. Massachusetts Bonding Ins. Co., 157 Tenn. 254, 8 S.W.2d 369, 64 A.L.R. 962; Northam v. Metropolitian Life Ins. Co., 231 Ala. 105, 163 So. 635, 111 A.L.R. 622; Smith v. Ætna Life Ins. Co., 24 Tenn. App. 570, 147 S.W.2d 1058. Other State authorities, however, apply to the term an interpretation of somewhat broader scope. It is stated in 1 C.J., page 427, viz.: "Where the effect is not the natural and probable consequence of the means which produce it — an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of the means, or an effect which the actor did not intend to produce, and which he cannot be *Page 910 charged with a design of producing — it is produced by accidental means." At least since International Travelers' Ass'n v. Francis, 119 Tex. 1,23 S.W.2d 282, 284, our Supreme Court has been committed to the latter or more liberal rule.
Under the court's judgment herein, and for the purpose of this discussion, plaintiff's allegations of fact must be taken as true. Deceased, C. M. Hanna, ill with a cold took the sulfanilamide tablets and aspirin on a doctor's prescription. It was charged that there was either an overdose of the drug by mistake, or that some unknown element in the medicine, combining with an unknown idiosyncrasy of body, produced fatal results, same constituting death from bodily injury sustained solely, through external, violent and accidental means, In the Francis case, supra, infection, blood poison and death followed the extraction of deceased's tooth; and to similar provisions in the policy there sued on, Chief Justice Cureton, quoting extensively from Cooley's Briefs on Insurance, applied the following test of liability: "Whether or not the means is accidental is determined by the character of its effects. Accidental means are those which produce effects which are not their natural and probable consequences. * * * 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 such means, an effect which the actor did not intend to produce and which he cannot be charged with the design of producing, is produced by accidental means. It is produced by means which was 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." Judge Cureton further said in this connection: "The expressions we have quoted from Cooley above do not state that because of an injury we infer an accident, but the meaning is that, where normal and ordinary means are employed in the usual way, and, instead of producing the usual, normal, and expected result, an altogether different and fatal thing happens, the result is an accidental one, because an unknown factor, unexpected and unforeseen, has entered into the circumstances, which the authorities call a vis major or an act of God; and, when the vis major is so connected with the means employed, as in the instant case, as to be a part and parcel of what would otherwise have been a voluntary act, then the means employed, though employed voluntarily, take color from the unknown and fatal factor and become accidental." United States Mutual Accident Ass'n v. Barry,131 U.S. 100, 9 S. Ct. 755, 33 L. Ed. 60, and Bryant v. Continental Casualty Co., 107 Tex. 582, 182 S.W. 673, L.R.A. 1918E, 945, Ann.Cas. 1918A, 517, among numerous authorities, are then cited.
That plaintiff's cause of action as pled is within these announced principles, is apparent. The unknown factor is alleged, producing a result not beneficial as intended, but fatal. The law of the Francis case has been consistently followed and approved by our Supreme Court. See International Travelers' Ass'n v. Yates, Tex.Com.App., 29 S.W.2d 980, where death resulted from use of an anesthetic preparatory to a tonsil operation; also Seaboard Life Ins. Co. v. Murphy, 134 Tex. 165,132 S.W.2d 393. Of outside decisions, Taylor v. New York Life Ins. Co.,176 Minn. 171, 222 N.W. 912, 60 A.L.R. 959, is nearest in point. There the assured was given a local anesthetic (novocaine) preparatory to a tonsil operation. Unknown to the patient and surgeon, her body was hypersensitive to the drug and death ensued before the operation was performed. Her bodily condition was not that of a normal person, but abnormal to a degree rarely found. The court, in affirming liability, said: "* * * the weight of authority is to the effect that the term `accidental' is equally descriptive of means which produce effects which are not their natural and probable consequences, as it is of means which are wholly unexpected"; citing many cases common to International Travelers' Ass'n v. Francis.
But appellee argues that the earlier Supreme Court interpretation of "accidental means" in Bryant v. Continental Casualty Co., supra, clearly excludes liability under the instant facts. There death was from a sunstroke sustained while assured was walking on a hot summer day, the casualty being held within terms of the policy. In course of a lengthy opinion, Chief Justice Phillips had this to say [107 Tex. 582,182 S.W. 676, 33 L. Ed. 60]: "It is generally recognized, as it should be, *Page 911 that where a man undertakes to do a certain thing by a particular means, and the result of his act is such as follows, in not an unusual or unexpected way, from the means voluntarily used, it cannot be said to be due to an accidental cause, though, in the sense that it was not intended, an accidental result is the consequence." (Emphasis ours.) We do not regard the quoted excerpt as in conflict with the principles announced in International Travelers Ass'n v. Francis; even so, the later case must be considered authoritative. Judge Phillips was simply referring to results naturally following an act voluntarily done, without error or mistake as to external agencies; see McGinley v. John Hancock, etc., Co., 88 N.H. 108, 184 A. 593; Naggy v. Provident Life Accident Ins. Co., 218 Iowa 694, 255 N.W. 526, and Vance on Insurance, Sec. 258, page 869 et seq., for illustrative cases. And would not the corollary to the above statement of Judge Phillips also be true, that, where the result of a given act is such as follows in an unusual and unexpectedway from the means voluntarily used, it can be said to be due to an accidental cause? Indeed, aforesaid corollary is implicit in the Bryant opinion, for there when discussing the facts of United States Mutual Accident Ass'n v. Barry, supra (a leading authority on the subject), Judge Phillips said: "It was held to have been an accident, notwithstanding the voluntary nature of the act which caused it, for the reason that it was an unforeseen result, following, not naturally from the act, but in an unusual and unexpected way." (Emphasis ours.)
In the Francis case, Judge Cureton referred to the "two clearly defined lines of authorities," on the question here involved, citing Caldwell v. Travelers' Insurance Co., supra; and, as already seen, expressly adhered to the more liberal rule there outlined, in which connection it is significant that he considered the previous decision of Bryant v. Continental Casualty Co. as consistent in statements of principle.
Furthermore, plaintiff has pled an over-dose of the medicine by mistake, resulting fatally. Such state of facts has been uniformly held to involve liability under a contract providing against death or injury through external, violent and accidental means; Kennedy v. Ætna Life Ins. Co., 31 Tex. Civ. App. 509, 72 S.W. 602; Lewis v. Ocean Accident Guarantee Corp., 224 N.Y. 18, 120 N.E. 56, annotated in 7 A.L.R. 1131, supplemented to 111 A.L.R. 628. And referring to the policy terms of "external" and "violent", same are referable to death or injury from an accidental or unnatural cause; the term "external" applying to the force or means, and not to the injury. "Thus, poison taken into the system, and operating entirely internally, is nevertheless an external cause, as is the water which causes death by drowning, and gas which causes asphyxiation. Likewise, the term `violent', as applied to causes of accidental injury, means merely that the cause is efficient in producing a harmful result. It is not necessary that it shall be violent in the sense of breaking tissues or otherwise physically and visibly affecting the body." Vance on Insurance, 2d Ed., Sec. 258, page 879. See also Paul v. Travelers' Ins. Co., 112 N.Y. 472, 20 N.E. 347, 3 L.R.A. 443,8 Am. St. Rep. 758; American Acc. Co. v. Reigart, 94 Ky. 547, 23 S.W. 191,21 L.R.A. 651, 42 Am. St. Rep. 374; Ætna Life Ins. Co. v. Brand, 265 F. 6, 13 A.L.R. 657; Burns v. Empire Employers' Liability Ass'n, Ohio App.,31 N.E.2d 690.
We conclude, therefore, that the pleading in question disclosed grounds of action, and the learned trial court erred in rendering judgment of dismissal.
Reversed and remanded for trial to the merits.