(dissenting).
This action at law, first filed in the circuit court of Wicomico county, Md., and later removed to the federal court on the ground of diversity of citizenship, was brought by the beneficiary of a life insurance policy to recover the double benefit payable in ease of the death of the insured resulting solely from exterior, violent, and accidental means. At the trial in the District Court, it was proved that the insured was seen approaching his garage at 6 o’clock on the morning of January 19, 1933, and, less than two hours later, was found dead inside the garage, lying on his back by the side of his automobile. The headlights of the car were burning, the left front tire was flat, and the tire and rim had been removed from the wheel whieh was elevated on a jack. The door was closed, and the garage was filled with smoke and fumes. The wind was from such a direction that 'it would blow the door to, if it were not fastened back. The company paid the single indemnity provided by the policy, but contested its liability for double indemnity.
At the trial, the defendant conceded that death was due to carbon monoxide asphyxiation, and the jury was instructed that such a death results from external and violent means. The issue as to whether the death was also the result of accidental means, or, as the company contended, was suicidal, or so recklessly brought about as not to be accidental within the meaning of the policy, was submitted to the jury, and a verdict was found for the plaintiff. There is no complaint that the court’s instructions on this point were wrong. The appeal rests, upon the contention that the company’s prayer for a directed verdict in its favor should have been granted because the plaintiff failed to show sufficient facts in other respects to bring the ease within the double indemnity feature of the contract. By the policy, the company agreed to pay $5,000 upon the death of the insured, “or, subject to the terms and conditions of Section 7, a double death benefit, to wit, Ten Thousand Dollars, provided the death of the insured result solely from external, violent and accidental means. * * * ” “Section 7. Double Death Benefit. Upon receipt, at its Head Office, of this policy duly discharged and of due proof that the death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means, of whieh (except in ease of drowning or of internal injuries revealed by an autopsy) there is a visible contusion or wound on the exterior of the body; and that such death occurred within sixty days after sustaining such injury, the company will pay, instead of the death benefit, a double death benefit, to wit: Ten Thousand Dollars.”
The appellant points out that there was no evidence to show either a visible contusion or wound on the exterior of the body or internal injuries revealed by an autopsy, and therefore contends that proof of death from bodily injury, effected solely through external, violent, and accidental means, was not furnished within the meaning of the policy. A small bruise was found upon the forehead of the deceased, but it was so insignificant that the District Judge instructed the jury that it had no bearing on the case and did not tend to prove that death was caused as contemplated by the double indemnity clause, and so the appellant has no complaint in this respect. But the District Judge held, in view of the concession that death was caused by carbon monoxide asphyxiation, that the omission to perform an autopsy revealing internal injuries was immaterial; and this holding furnishes the only substantial ground for the appeal.
It is insisted that the policy was not intended to cover death from external, violent, and accidental means in the ease of internal injuries, unless they should be revealed by an autopsy, and that the burden of presenting this proof was upon the plaintiff, and, without it, the suit must fail. It was held in Paist v. Aetna Life Ins. Co. (C. C. A.) 60 F.(2d) 476, that a death from sunstroke did not fall within the terms of a policy whieh provided for double indemnity in case of external, vio*529lent, and accidental death, if the accident should be evidenced by a visible contusion or wound on the exterior of the body. The court said that the parties had agreed that the accident, against which the insured was indemnified, should be evidenced by such a contusion or wound; that these words are of well-known and commonly understood meaning, and did not describe a flushed and sunburned face accompanying the stroke. Adhering to the same principle, it was held in Mutual Life Ins. Co. of N. Y. v. Schenkat (C. C. A.) 62 F.(2d) 236, that the insured was covered by a similar policy, when death from accidental poisoning occurred, for it was thought that the requirement of a visible contusion or wound was satisfied in the swelling of lips and tongue, the pallor of the insured, and the subsequent discoloration and paralysis of the body which attended the poisoning. See, also, Bergholm v. Peoria Life Ins. Co., 284 U. S. 489, 52 S. Ct. 230, 76 L. Ed. 416, and Bahre v. Travelers’ Protective Ass’n, 211 Ky. 435, 277 S. W. 467, which applied the rule that the parties have the right to place in their contract such limitations as they desire; and, when these are clear and unambiguous, the court must give them effect according to their meaning and intent.
The ruling of the District Judge was nevertheless correct, that the revelation of internal injuries by an autopsy was not essential to recovery. Obviously the primary purpose of the double indemnity clause was to insure the payment of double benefits in case of death from external, violent, and accidental means. That is shown by the clause quoted from the policy. Still it must not be overlooked that this clause is expressly subject to the conditions of section 7, and they include the relevant provision that, if death results from internal injuries, they must be revealed by an autopsy. It would seem to be the purpose of this provision to protect the company from fraud or mistake; or it may be, as the appellant in effect contends, that the double indemnity clause does not cover any death from internal injuries, unless they leave some visible mark within the body discoverable by an autopsy. In such an uncertainty, it is the duty of the court to adopt the construction most favorable to the insured. Thompson v. Phenix Ins. Co., 136 U. S. 287, 10 S. Ct. 1019, 34 L. Ed. 408. But there is no need to invoke this rule, for in either alternative the concession of the company puts an end to its defense. There is no room for fraud or mistake as to the cause of death when the company admits that it was caused by carbon monoxide asphyxiation; and, for the same reason, there is no lack of definite proof of internal injuries evidencing the cause from which the insured died. Standard medical authorities, of which we are at liberty to take judicial notice, agree that, when a person dies from carbon monoxide asphyxiation, marked physical changes take place within the body. The blood, and consequently all the organs, assume a bright cherry red color due to the affinity and consequent combination of carbon monoxide with the hemoglobin in the blood, which prevents the hemoglobin from performing its normal function of taking up the oxygen in the blood as it passes through the lungs, and giving it off to the tissues of the body as the blood circulates through them. See MacCullum on Pathology and Webster on Legal Medicine and Toxicology. It is. true, literally speaking, that these manifestations have not been revealed in this case by an autopsy, but no purpose, which the parties to the contract could possibly have had in mind, would be served by such a revelation. The concession that the insured died from carbon monoxide asphyxiation includes the admission that an autopsy would have disclosed the indubitable marks of such a death on the inside of the body. To say that in such a ease recovery must be denied because the language of the policy has not been completely fulfilled is to quench the spirit of the document.
There is no failure, in the conclusion reached, to recognize the binding effect of a clear and unambiguous contract. The distinguishing feature of the pending ease is the concession of the insurer which goes to the very heart of the controversy. It is not reasonable to suppose that the parties intended that the insurer should have the right to refuse payment of double indemnity, merely because an autopsy had not been performed, although the insurer should be completely satisfied from the proof, not only that death had been caused by external, violent, and accidental means, but also that, if an autopsy should be performed, internal injuries, which' ordinarily accompany such a death, would be revealed. The purposes of the parties, rather than the literal significance of the terms of the policy detached from the realities of the situation, should govern the interpretation of the contract.