(dissenting).
The majority opinion ignores the testimony and the plain provisions of the insurance policy here involved. On the face of this policy is found this provision:
■ “* * * and }n eVent of death from accident the society agrees to increase the amount so payable to — Twelve Thousand Dollars — upon due proof that the death of the Insured resulted solely from bodily injuries caused directly, exclusively and independently of all other causes by external, violent and purely accidental means, subject to the terms and conditions contained on the third page hereof.”
On page three under Privileges and Conditions, this provision is found:
“The increased amount of insurance as stipulated on the face hereof, in case of accidental death shall be payable upon receipt of due proof that the death of the Insured occurred while this policy was in full force and effect, and resulted.solely from bodily injuries, caused directly, exclusively and independently of all other causes by external, violent and purely accidental means, provided that death shall ensue within 90 days from the date of such injuries and shall not be the result of or be caused directly or. indirectly by self-destruction, sane or insane, disease or illness of any kind, physical or mental infirmity, any violation of law by the Insured, military or naval service of any kind in time of war or by engaging as a passenger or otherwise in submarine or aeronautic expeditions. The Society, in order to determine whether death occurred within the meaning" of this provision, shall, in the absence of legal restrictions, have the right and opportunity to make an autopsy.”
The burden was upon the plaintiff in this case to show that the deceased’s death resulted solely from bodily injuries caused directly, exclusively and independently of all other causes by external, violent and purely accidental means and was not the result of or caused directly or indirectly by disease or illness of any kind, physical or mental infirmity. Federal Life Insurance Company v. Firestone, 159 Okl. 228, 15 P.2d 141. This was not done. The nearest that the plaintiff came to it was shown in the answer of the doctor offered by plaintiff to a long but incomplete question as to cause of J. M. Neale’s death which is as follows:
“A. Well, I hardly know how to answer it. I think that primary cause of death was the blow.”
This answer in no way eliminates the possibility that disease and physical infirmity were contributing factors to Mr. Neale’s death. This witness further testified:
“A. Well, I don’t know whether I should explain anything or not. I saw this man’s heart and I know it was definitely diseased.”
In light of this statement, I do not see how anyone could say and no one did that the diseased heart was not a condition that contributed to Mr. Neale’s death. There is no testimony that if tlie deceased had been a well man that the fall would have resulted in death.
Arteriosclerosis in other parts of the body was not eliminated as a contributing cause.
The next error in the case, which cannot be “plower around” in any way, is the giving of Instruction Number Six which is as follows:
“You are instructed that if you find and believe from the evidence that the deceased fell and as a result of that fall he received a severe blow on the head which accelerated or aggravated a diseased condition which was present and had been present for some time and that death resulted therefrom, it was an, accidental death within the meaning of this policy and your verdict should be for the plaintiff.
“You are further instructed, however, that if you do not find and believe from the evidence that the deceased fell and as a result of that fall he received a severe blow on the head which accelerated or aggravated a diseased condition which was present and had been present for some time and that death resulted therefrom, it was not an acci*661dental death within the meaning of this policy and your verdict should be for the defendant.”
This instruction tells the jury that it may find for the plaintiff if it finds that the deceased fell and as a result of that fall he received a severe blow on the head which accelerated or aggravated a diseased condition which was present and had been present for some time and that death resulted therefrom. This instruction is in absolute conflict with the provisions of the insurance •contract. This tells the jury if the death was the concurrent result of a pre-existing ■condition the plaintiff may recover. Thi9 ■is contrary to the rule long established in this State. Great Northern Life Insurance Co. v. Farmers Union Co-Operative Gin Co., 181 Okl. 370, 73 P.2d 1155. I would like to quote from 45 C.J.S., Insurance, § ■938, subsection d (3) at page 1088:
“If an accidental injury and the preexisting disease or infirmity cooperate in causing the death of insured, double indemnity cannot be recovered, even though the injury is an active, efficient, and procuring cause, provided the disease or infirmity contributes, either directly or indirectly, to the causing of insured’s death, or if, as has been held, the disease or infirmity is the proximate cause of insured’s death. This rule applies where the preexisting disease so aggravates the effect of the accident, or the accident so aggravates the effect of the disease, that the accident would not have proved fatal except for the disease.”
The last half of Instruction Six in no way relieves the vice of it.
Here was a man who had a stroke in 1927, a year after the policy was purchased, and who sustained an injury in 1936 that permanently disabled him and he was paid sixty dollars a month from that time until his death in 1951. He never paid a premium after 1936 and was not required to pay part of the premiums previously because of disability. The defendant in this case by the use of plain and simple English provided in the contract that it should not be liable for double indemnity unless the death resulted solely from bodily injuries caused directly, exclusively and independently of all other causes by external, violent and purely accidental means and death shall not be the result of or be caused directly or indirectly by disease or illness of any kind or by physical or mental infirmity. Plaintiff failed to show death came to the deceased as required by the terms of the policy.
This case should be reversed. I dissent.