dissenting:
The insured was a physician and surgeon, and insured as such. In the course of his business, he mixed poison and water in a goblet, and afterwards, mistaking the mixture for water, drank it, from the effects of which he shortly died.
It was a case of accidental poisoning, as found by the court, but the court held, as a matter of law, that the accident was not covered by the policy.
The policy is termed a “ General Accident Policy,” which name was selected and applied by the defendant as fairly descriptive of the contract, and undoubtedly with the intent to induce the belief that such was the character of the instrument. General terms intended to characterize an instrument with the public, and printed in large type for the purpose of arresting attention, should have great weight in the construction of limitations and provisos inconsistent with the general terms.
The centra] idea of the policy is partial indemnity against loss by accident. Such was the understanding of the insured when he purchased it, and that such would be its effect, the insurer intended that the insured should understand.
“ To reach and carry the intention of the parties into effect, the law, when it becomes necessary, will control even the literal terms of the contract, if they manifestly contravene the purpose; and many cases are given in the books in which the plain .intent has prevailed over the strict letter of the contract.” (2 Kent Comm., 554, 555.)
The engagement (aside from the provisos), is to pay the sum specified in the policy, if the insured within a time limited die from “ bodily injuries effected through external, violent, and accidental means, within the intent and meaning of the contract and the conditions hereto annexed.”
The defendant claims that it is exempt from liability under-*191the policy on three grounds: (1) That death was not effected, through external means. (2) That death was not effected through violent means. (3) That the death is within the following proviso: “ Provided always that this insurance shall not extend to any bodily-injury . . . or death . . . caused . . . bythetakingof poison.”
External is exterior, visible, apparent; (Webster). Means is that, which is used to effect an object, and in the sense used in the-, policy, is synonymous with cause.
Internal means are causes occurring and operating within the-body of the insured, and effecting death by unapparent and invisible means or causes. Such risks are not assumed under the. policy.
External means are exterior, visible and apparent means, or causes. Mistaking the poison for water, drinking it, and its action on decedent’s system was the means or cause of death. The means, or cause, was partly external and partly internal. The mistake, and the act of drinking were external, visible, and apparent ; the immediate action of the poison was internal, though external as well as internal in its effect.
The court finds that the poison caused “ cramps, spasms, rigidity of the muscles, locking of the chest, and blackening of the face before death.” It killed the insured. The accident (as before-stated), consisted in mistaking poison for water, and from this accident, this means, this cause, death ensued. The accident was external ; the injury is not the accident, the means, or the cause, but the result. (Southard v. Railway Passenger Assurance Co., 34 Conn., 574.)
Exhibitions of physical force, have, through fright, caused death,, though the victim was untouched.
The effect may be said to be internal, but the means, the cause,, is apparent, visible, external, though operating internally as well as externally. We cannot divide in twain the whole-continued cause, or means, and say the defendant is not liable because part of the cause, and its most immediate effect, was internal.
In the language of the policy, the cause of death was not unknown, or incapable of “direct and positive proof.” It was in*192-tended by this language to exempt the defendant from liability for injuries arising by accident within the system without an externalnpparent, visible, violent, and accidental cause, but not to exempt .it from liability for such internal causes of death as are directly •traceable to external, visible, apparent, violent, and accidental means. (Fitton v. Accidental Insurance Co., 17 C. B. N. S., 122.) In Reynolds v. Accidental Ins. Co. (18 Weekly Rep., 1141; 22 Law Times, 820), the insured, while bathing in a shallow stream, became .insensible from some internal cause, fell with his face downwards, .and drowned. In Winspear v. Accident Ins. Co. (42 Law Times, N. S., 900; 22 Alb. Law J., 223), the policy insured against “ any personal injury caused by accidental, external, visible, means.” The insured while fording a stream, had an epileptic fit, fell into the ■stream, and was drowned. In both cases, the deaths were held accidental, occasioned by external and visible means. The mistake, the accident, was the immediate cause of death, within the meaning of the policy, though the operation of the poison intervened, and .caused death.
The operation of the poison, flowing as it did in this case, immediately, and with absolute certainty from the mistake, or accident, the mistake, and the operation of the poison are not (upon principle and authority), divisible into primary and seeoinlary causes, but constitute a single, continued cause, and covered by the policy. (Fitton v. Accidental Ins. Co., supra; Reynolds v. Accidental Ins. Co., supra; Winspear v. Accidental Ins. Co., supra; N. A. Life and Accidental Ins. Co. v. Burroughs, 69 Penn. St., 43.) In the case last cited, death occurred from peritoneal inflammation caused by a hay-fork slipping through the hands and striking the abdomen cf the decedent. No external bruise was discovered. The death occurred five days after the accident, and it was held to have resulted from the injury, notwithstanding the intervention of the disease which the insurer claimed was the secondary and immediate cause cf death.
The means were violent; not natural, spontaneous; and not occurring from usual and natural causes. The degree of force or violence is not material. (Southard v. Railway Passenger Assurance Co., 34 Conn., 574.)
*193Accidental death from drowning while bathing has been held to lie “ death from external violence.” (Trew v. Insurance Co., 6 H. & N., 845, and cases before cited.) If the most violent meaning is to be given to the word “ violent,” bat few cases of accidental injuries would be covered by such policies.
Is the defendant exempt from liability because the insured died “by_the taking of poison”? A proviso is to be strictly construed .-so as not to take a case within the general terms of the contract, out •of it, unless the case is clearly excepted by the proviso, is within the reason thereof, and within the intent of the parties.
I think the word “ taking,” in this connection, means an intentional taking, either with or without intent to destroy life, and that this phrase is intended to exempt the insurer from liability for accidents arising from the intentional use of poison. Such, I think, was the understanding of the parties.
If the insured had died from the taking of poison into his system from an accidental cut in a dissecting or operating room, or from taking poison into his system from the bite of a venomous serpent, neither would, perhaps, have been within the technical meaning, nor within the popular meaning of death by taking poison, and, therefore, not excluded by the proviso from the risks insured .against. In the construction of statutes and contracts, the ordinary and popular meaning is to be given to words and terms employed. (Schriefer v. Wood, 5 Blatchf., 215; Jackson v. Topping, 1 Wend., 388; Sedgwick on Stat. and Const. Law, 2 ed., 225; Potter’s Dwarris, 193.) If the case at bar is excluded from the policy by the •exception, I think the two supposed cases would be ; for the liability in such instances cannot be dependent upon the introduction of poison by methods other than swallowing.
Policies exempting insurers from liability in case of the death of the insured by suicide or by his own hand, are construed to mean intentional suicide, or intentional death by his own hand, by a sane person, capable of having and carrying into effect a rational intent. Bayles v. Insurance Co. (14 Blatchf., 143) is not germain to -any question arising in this contention. In that case, the policy -exempted the insurer “ from liability for death or disability caused wholly or in part by medical treatment for disease.” Death was. *194caused by taking opium. It was not taken accidentally, but intentionally, upon tbe prescription of a physician in the course of “ medical treatment for disease,” and the decision is placed upon that ground.
This policy is not a compact, but a unilateral obligation, which is to be taken most strongly against the party executing it. This-has been the rule for the construction of such instruments since deeds poll were first used (2 Blacks. Comm., 308); and it has? usually been followed in construing policies of insurance, notices-issued by express companies, 'telegraph companies, and common-carriers. From the whole instrument, read in the light of the object to be attained, I cannot doubt that the true intention of the? parties was to provide compensation in case of death from such an accident as occurred to the decedent. Policies of insurance should bo liberally construed, so as to carry into effect the intention of the parties, and save, instead of destroying the contract.
“ When the terms of a promise admit of more senses than one,, the promise is to be performed in that sense in which the promisor apprehended at the time that the promisee received it.” (2 Kent Comm., 557.) -The judgment should be reversed, and a new trial granted, costs to abide the event.
Present — Learned, P. J., Bocees and Follett, JJ.Judgment affirmed, with costs.