The plaintiff in error, hereafter called the defendant, is a mutual accident insurance company, incorporated under the laws of this state and having its principal place of business at Omaha. It had issued to the defendant in error, hereafter called the plaintiff, a policy of insurance, in which it undertook to indemnify him at the rate of $25 per week, for not exceeding fifty-two weeks, during which he should be totally disabled by reason of bodily injuries received through external, violent and accidental means. On the 8th day of January, 1898, while the contract was in force, the plaintiff suffered an injury consisting of the breaking of both his legs, and totally disabling him until some time in February, 1899. The contract avoided the liability of the company unless notice of the accident was given to it within fifteen days after the occurrence. This notice was given. It was also provided that such liability *470should, be avoided unless the assured should “within thirty days after the said total disability ceases, furnish the executive board with affirmative proofs in writing, of the duration of the disability, and of the nature, cause and effect of the injury sustained, and such other proofs as may be required by the executive board.” Shortly after the happening of the accident the company learned of the nature and extent of the plaintiff’s injuries through an examination of them, at its request, by a physician. On the 26th of January, 1898, — less than three weeks after the happening of the accident, — the company sent to the plaintiff by mail certain printed forms, enclosed with a letter saying: “We hand you herewith blanks for final proofs which you will please return properly executed as soon as you have recovered.” The blanks thus furnished were filled out in writing and signed by the plaintiff’s attending physician, as was indicated to be required, and sent to the association in such time as to reach it on the 20th day of January, 1899, some days before the disability ceased, and twelve days after the fifty-two weeks term of indemnity had expired. The nature of the final proofs required was not specified in the contract of insurance, and this physician’s statement was a full compliance with all the demands in that respect which had been made upon the plaintiff at the time it was made, and was received by the defendant. Demands for further proofs were, however, made by the company, which were complied with by the plaintiff, but on account of delays unavoidable, by the plaintiff, in the transmission of documents through the mails, did not reach the company until some time in February, more than thirty days from the expiration of the term of indemnity, but within thirty days from the date of the cessation of disability. The plaintiff, however, answered all correspondence promptly, and is in no respect responsible for delay. The foregoing facts are undisputed, and we think dispose of one of the defenses to this action. The plaintiff had no means of knowing what final proofs would be required of him until he was notified with respect-*471thereto by the company. He was thus notified by the letter of January 26, 1898,. and until further informed, had a right to rely upon that letter as stating the whole requirement of the company in that regard. Tire proof required by that letter was sufficient, unless, having had an opportunity so to do, he had neglected to furnish additionally demanded proofs within the ,specified time. There is not only no evidence of such neglect, but the evidence establishes the contrary beyond the possibility of reasonable controversy. This conclusion makes it unnecessary to decide whether the plaintiff had until thirty days after the cessation of his disability within which to furnish final proofs, according to the letter of his contract, or whether he was bound to furnish them within thirty days after the term of indemnity expired, as the defendant contends.
A further question is as to whether the injury "was accidental. The contract contained the following clause: “The association shall not be liable for disappearances, nor shall the. association be liable for injuries occasioned wholly or partly, directly or indirectly, by any of the following acts or causes, or occurring while so engaged or affected: Disease, bodily or mental infirmity, hernia, orchitis, fits, vertigo, sleepwalking, * * * intentional injuries inflicted by the insured, sane or insane, voluntary over-exertion, wrestling, racing, violation of law7, fighting, duelling, wrar or riot.” The manner of the happening of the injury, so far as disclosed by the evidence, was as follows: The plaintiff had been Avaiting for some time in a corridor on the fourth floor of the NeAV York Life Building in New York city, for the purpose of meeting an appointment. Becoming tired, he sat down to rest iupon a balustrade surrounding the open court in the interior of the building. Shortly afterwards he became conscious of being upon the first floor, with both his legs broken, and surrounded by bystanders. He has no recollection of falling through the air, and has no knowledge of when or how7 lie left his seat. No one testified to having *472seen him fall, or to having seen the injury inflicted upon him, or to any knowledge of the manner in which it happened to him. He offers as an explanation the hypothesis, which was adopted by the trial court, that he accidentally lost his balance upon an insecure seat, and fell through the open space between the fourth and first stories of the building. The defendant objects that there are several other hypotheses by which the known facts may equally well be accounted for. First, it is contended that there is no evidence that the plaintiff fell at all. This is an inference from the situation in which he was found after the injury, and from the fact that he had been shortly previously sitting upon the balustrade, but it is possible that he reached the first floor by some other means than falling. But if it be conceded that he did fall, it is an inference only that the fall caused the injury complained of, which might even in that event have been otherwise occasioned. And finally, if the fall and consequent injury be both conceded, they do not conclusively establish that the former was accidental, within the meaning of the contract. It might have been occasioned by bodily disease, such as heart failure or vertigo, or from a sudden insane and suicidal impulse, from the consequences of which the company was by its contract expressly exempted from liability. The defendant thereupon insists that as the fact of the fall, if established at all, is proved by circumstantial evidence only, an inference that it was accidental can not be drawn therefrom, because of the rule that facts proved solely by circumstantial evidence can not themselves be treated as circumstances to prove ulterior facts. Hence it is contended that there is no competent evidence tending to prove that the infliction of the injury was accidental, within the meaning of the contract. Concerning the existence and ■ validity of the rule mentioned there is no doubt. Green-leaf, Evidence [15th ed.], secs. 1-13; Manning v. John Hancock Mutual Life Ins. Co., 100 U. S.,693; United States v. Ross, 92 U. S., 281; Globe Accident Ins. Co. v. Gerisch,* *473163 111., 625. The only question is as to its applicability to any particular case, and that some of the authorities carry it to as extreme a length as is contended for by the defendant can not be gainsaid. But it seems to us that so to do is to destroy the value of circumstantial evidence entirely. If after one has been found dead with a bullet hole in his heart, and it has been satisfactorily proved by circumstances that shortly before that time another had discharged a gun towards him, it can not be inferred that the wound was the consequence of the shot, then the proof of homicide by circumstantial evidence is impossible. And so if, after I have been proved by circumstances to have suffered a fall capable of inflicting certain bodily injuries, for which no other account is given, it can not be inferred that the injuries are the result of the fall, it is useless to prove the latter. And if the same circumstances from which a fall may be inferred, lead to the presumption that the fall was accidental, why may not the latter inference, as Avell as the former, be indulged? In the former case the fact is established for no other purpose than to give an account for injuries which are its natural and probable consequences. If a man’s skull has been crushed, I am proved by circumstances to have struck him on the head with a bludgeon, for no other purpose than to justify the inference that my blow caused the injury. And so, human nature and the instinct of self-preservation being what they are, the circumstances which prove that a man not suspected of physical or mental infirmity has fallen from a dangerous height, raise a presumption that is well nigh irresistible that the fall was accidental. In other words, so large a majority of men are free from such mental or physical disabilities as would cause their precipitation from dangerous heights, that unless their presence is shown, the nearly universal and well-known traits and instincts of healthy persons are part of the attending circumstances by which the fall is proved, and the very circumstances that prove the fall, prove that it. was acci*474dental. To hold otherwise would be to indulge a presumption against probability. We do not think that we are warranted by reason or authority in so doing. Thus in Hampson v. Taylor, 15 R. I., 83, 8 Atl. Rep., 331, which was an action for injuries suffered by a fall upon an icy sidewalk, evidence that the plaintiff was of intemperate habits was held not to overcome the presumption that he was sober at the time of the happening of the accident. In Continental Ins. Co. v. Delpeuch, 82 Pa. St., 225, it was held that the finding of a dead body without marks of violence raised no presumption of suicide, and, as the circumstances of the finding indicated death by drowning, the presumption was indulged that the drowning was accidental. In Guardian Mutual Life Ins. Co. v. Hogan; 80 Ill., 35, 41, “it clearly appeared,” says the court, “that John Hogan [the insured] died from the effects of arsenic, either purposely or inadvertently taken by himself,” and it was held that it was for the jury to say whether the death was suicidal or accidental. So in the case at bar it appears clearly, although from circumstantial evidence, that the plaintiff was injured by falling; and we think the circumstances warranted the court in going a step further than in the case just cited, and saying that no other presumption than accident was permissible under the evidence, or, in other words, that in the absence of other evidence it would not be permissible to presume disease or suicide as the cause of the fall.
The petition alleged that the fall was accidental, and it is insisted that the burden of proof was upon the plaintiff to establish that cause, and no other. The correctness of this contention is undisputed, but we think the .plaintiff has met the requirement. All that was demanded of him was to establish a reasonable probability. He was not bound to conclusively negative every other hypothesis or conjecture which might be suggested without evidence in its support.
A jury Avas waived, and the cause tried to the court, who found generally for the plaintiff, and rendered judg*475ment accordingly. The defendant prosecutes error. It is recommended that the finding and judgment be affirmed.
The following opinion on rehearing was filed on April 22, 1903:Commissioner’s opinion, Department No. 1.
1. Suit on Accident Insurance Policy: Facts: Evidence: Presumption. . Plaintiff testified that he leaned against the balustrade surrounding the stairway on the fourth floor of a building, and that his next succeeding" consciousness was a sense of intense pain, and a realization that a physician was applying stimulants to his nostrils at the landing beneath the balustrade, where he was found with both legs fractured. He had no recollection of his flight through space. Evidence held sufficient to warrant the inference of an accidental fall from the balustrade. Held, further, that the inference of an accidental fall is one inference to be drawn from the facts proved, which must prevail in the absence of a showing that the fall was the result of design or insane impulse. a. Accident Insurance. The beneficiary will not be held to a strict and literal compliance with the provisions of an accident insurance policy with reference to final proofs of the extent and duration of the injury, where a short delay in supplying such proofs has been occasioned by circumstances not attributable to his own laches or bad faith, and particularly where the insurer could easily have enabled the claimant to obviate its objections to the sufficiency of the proof. 3. Evidence. Evidence examined, and held sufficient to warrant the judgment and finding of the trial court. 4. Stare Decisis. Former decision herein (Western Travelers Accident Ass’n v. Holbrook, 65 Nebr., 469) adhered to. Duffie and Albert, CC., concur.By the Court: For reasons stated in the foregoing opinion, it is ordered that the finding and judgment of the district court be
Affirmed.
54 Am. Rep., 486.