(dissenting).
The medical evidence showed that the ante-mortem clot “had been there for some time”; and in the posture of the case as it was when it was taken from the jury, they might reasonably have found that, but for the fall, the deceased would have continued to live indefinitely. Hence the fall is — in Justice Cardozo’s felicitous phrase —“an accident in the common speech of men”;1 and purchasers of accident insurance would hardly expect that latent heart trouble, unknown to anyone and only to be brought out by an accident, would be a complete bar as a matter of law. The logic of this conclusion must apply inevitably to all conditions contributing to death, such as ulcers, whether benign or malignant, or even nearsightedness which might have caused a fall leading to death.
As might be expected with • respect to insurance contracts which may easily amount to traps for the uninitiated, there are conflicting interpretations of such policies. Yet here again Judge Cardozo has pointed the way, in Silverstein v. Metropolitan Life Ins. Co., 254 N.Y. 81, 171 N.E. 914, by an approach which would make of this present issue a problem of fact, and not of law. Moreover, many of the seemingly conflicting precedents may be reconciled with his conclusion by noting that they also contain what counsel for defendant adroitly labels “the redundant clause,” which adds to the policy provision here in suit the further limitation “and not directly or indirectly, wholly or in part, due to disease or infirmity.” Such a clause, far from being “redundant,” puts the purchaser on direct notice that latent defects of the human body may prevent recovery. The policies in the three earlier cases from this Circuit cited in the majority opinion herein were of this restricted type. The point has not been passed upon in Vermont, but it seems likely that the Silverstein case will be followed there. In Clark v. Employers’ Liability Assur. Co., 72 Vt. 458, 48 A. 639, the Vermont supreme court distinguished two English cases which had allowed recovery for the very reason that the English insurance policies did not contain the more restrictive coverage excluding death caused even “indirectly” by disease. These English cases, Winspear v. Accident Ins. Co., 7 Q.B.D. 42, and Lawrence v. Accidental Ins. Co., 7 Q.B.D. 216, each involved an insured who had apoplexy while crossing a stream, with the result that he was drowned. In view of the Vermont court’s adherence to the rule of liberal construction of insurance policies, Corsones v. Monarch Acc. Ins. Co., 103 Vt. 379, 154 A. 693; Griswold v. Metropolitan Life Ins. Co., 107 Vt. 367, 180 A. 649, the beneficiary should have the benefit of any doubt here, at least to take her case to the jury, who may, of course, find the death not due to accidental means. After all, it was the insurance company which chose not to sell the more restricted form of policy.
Dissenting in Landless v. Phoenix Mut. Life Ins. Co., 291 U.S. 491, at page 498, 54 S.Ct. 461, at page 463, 78 L.Ed. 934, 90 A.L.R. 1382, to the point that sunstroke is death by accidental means, a dissent widely quoted and often asserted to be the majority view. Cf. Huss v. Prudential Ins. Co. of America, D.C. Conn., 37 F.Supp. 364, 365.