(dissenting). I. The defendant issued a policy to decedent, agreeing to indemnify “against loss of life resulting, from bodily injuries effected, directly and in*1233dependently of all other causes, through external, violent, and accidental means.” The first difference that constrains me to differ from the majority is its holding it is immaterial whether decedent was injured, as his petition declares, and that it is sufficient to make a case for a jury if, no matter upon what the petition plants itself, there is evidence that decedent sustained <my bodily injury effected solely through external, violent, and accidental means. This view of the majority would make it unnecessary to inquire upon what ground the petition seeks a recovery. Consistently enough, the majority opinion makes no claim that there is any evidence that bodily injury was effected by the causes declared on in the petition, — i. e., that decedent was injured either through carrying ashes or helping shift the position of a wagon; no claim that thereby decedent “slipped and strained himself.” In one word, the first difference between us is that, in my opinion, the plaintiff made no case for a jury unless he had some evidence that decedent slipped and strained himself, either by carrying ashes or helping shift the position of the wagon: while the majority holds that the allegations of the petition which thus limit the shit of the plaintiff are immaterial; that a case for a jury was made out on this head by merely adducing evidence that decedent did carry ashes and did help shift the position of the wagon; that, some hours thereafter, he, who had been healthy before, became sick; that, in the course of some two months, he died; and that an autopsy disclosed conditions alleged in the petition, and others not alleged therein. The attitude of the majority is that, for this day and date only, there shall be a dispensation absolving this plaintiff from supporting his plea by the proof. If there be no evidence of a slip, there can be no evidence that a strain resulted from a slip, or that conditions subsequently developed were due. to a slip. If, on an allegation that life was lost because carrying ashes or helping shift the position of a wagon ef*1234fected a strain or slip, the plaintiff may go to a jury without any evidence of the matters alleged, and have a verdict on evidence that something other than alleged injured the decedent, then, manifestly, plaintiff has a recovery without any evidence of the case that he has brought into court. If that is the law, then plaintiff need not file a petition at all, and may have a verdict by exhibiting his policy. Should he go through the useless formality of filing a petition, he need but allege that decedent came to his death by “some” accidental means; and if defendant move for more specific statement, his motion should be overruled. Or plaintiff may allege that decedent came to his death because of the explosion of a revolver, and have verdict on proof that the cause of death was being struck by a brick that had fallen from a building, — for both are accidental means of injury, and within the policy. With one stroke of the pen, the majority has ruled that one who defends a suit on a policy is not entitled to prepare for trial. For he may not stop his investigation when he is satisfied that plaintiff cannot sustain his petition, but must do the best he may to meet evidence not foreshadowed by the petition, after such evidence is put in on the trial. On this rule, he may, of course, not move for a continuance on the ground of surprise, because it is his duty to assume that the petition will be cast aside, and to prepare to meet any and all things that make liability on the policy without reference to the limitations in the petition. The rule allowing amendment to meet the proof no longer exists. What need to so amend when there may be recovery without amending? On the reasoning of the majority, should a defendant in a suit on policy set it out, and select two from ten bases of forfeiture therein contained, he may avoid the policy though he failed to prove these two, if he proved one or more of the other eight. The majority overrules Monaghan v. Equitable Life Ins. Co., 184 Iowa 352, without mentioning it, and gives to that case *1235also the effect of a stamp on a railroad ticket that the same is good for that day and date only. In that Case, the exact holding is that, no matter how liable the defendant might be, a directed verdict in his favor will be affirmed if claim against him has been restricted by the pleadings of the plaintiff and the concession of his counsel as to what in the pleadings is relied upon for the right to recover, and there is no evidence to support the claim of the pleading as thus restricted.
To the same effect, and, in effect, overruled by the majority without mention, is Doyle v. Willcockson, 184 Iowa 757; Gibson v. Iowa, Legion of Honor, 178 Iowa 1156; Ball v. Davenport, 170 Iowa 33; Seymour v. Chicago & N. W. R. Co., 181 Iowa 218; Koontz v. Iowa City St. Bank, 183 Iowa 1353; and Thomas v. Long, 182 Iowa 859. Indeed, the majority overrules ten thousand decisions, and every text on the subject of plea and proof. I could well be accused of pedantry for indulging in elaborate argument or citation on the proposition that the recovery is limited by the petition, and cannot be had without proof of the petition, were I not justified in so doing by the astonishing fact that the majority has challenged and destroyed this rule. In the last analysis, the opinion recurs in type to that apocryphal Irish jury that found the defendant guilty of murder, though the alleged corpse walked into the court room before the jury retired, and who explained the verdict with a statement that the jury knew the defendant had stolen a widow’s cow.
1-a
It follows no opinion testimony to the effect that conditions found on the autopsy were due to “some” external cause is of weight; and that it is of no importance that the spleen was hard and considerably enlarged; neither spleen or any injury to it is mentioned in the petition. So of a kink found in the bowel. Moreover, if this lack of plea as to *1236the kink is waived in argument, still, the evidence that the kink was found: is of no probative weight, because the cause of the kink is left in, equipoise. The witnesses for plaintiff say the kink might naturally be produced, not only by some strain or anything that happened in the work that decedent did, but could as well be produced by an ulcer, or because the mucous surface of some portion of the bowel had been injured, or by any condition that would produce an inflammatory change in the intestines, causing inflammation through contractions, or by something like unnatural peristalsis, or the taking of excessive laxatives, or from a spasmodic movement of the 'bowel, without outward cause of any kind, or from weakness in the wall of the gut in that part, or by gases or gas formations due to fermentation of food, and other things.
II. The next difference is because, in my opinion, the majority holds that plaintiff had a jury case on an allegation that an abscess of the pancreas was the sole cause of death, although there is no evidence that either such abscess or anything else was the sole or any cause of the death. I do not understand it to be matter of common knowledge that any abscess of the pancreas is necessarily lethal, or that any presumption exists that it was any cause of the death. If the objection that other things found on the autopsy are not pleaded be passed, there is no evidence that these were the sole cause or any cause of the death. In fact, the plaintiff expended all his force on proving the cause of what the autopsy disclosed, and made no effort to prove the relation of these to the death. In my opinion, the plaintiff must be defeated because he has no evidence of what did cause the death of his assured.
III. On the theory of the opinion, it is idle to consider what relevant testimony there is. But I think the inquiry is a controlling one. I am content to demur to the facts set out in the opinion of the majority, and think the *1237statement of facts therein is demurrable, on the ground that it discloses no evidence tending to support the petition. The opinion rightly states the plea to be that, through carrying ashes or helping shift a wagon, decedent “slipped and strained himself, producing an abscess of the pancreas, which resulted in peritoneal inflammation and death.” The evidence addressed to this allegation is that decedent did carry ashes in a tub, with the tub held against his abdomen. The only eyewitness mentions no slip, though he must have seen it, had one occurred. He says that the wagon weighed 1,200 to 1,500 pounds; that they slid it “over in a different position;” and the witness says they “had no trouble about that, moved it easy, the ground was muddy, and it slipped over.” Hie adds that decedent made no complaint, and returned to work in the afternoon, worked all afternoon, and still made no complaint. The only other testimony is that decedent held his hand on his stomach during the noon hour, and declined to eat, returned to work, went to a doctor that evening, and there was found a little discoloration over the central portion of his abdomen, and continuous rigidity of the muscles, muscular spasms ensued; that decedent, who had been in good health in the past, never became well from then on; that he died in about two months; and that, on the autopsy, an abscess of the pancreas was found. I have already said all I care to about the fact that an enlargement and hardening of the spleen and a kink in the bowel was also found. I am not overlooking that the condition of the decedent might be some evidence that he had suffered a strain due to a slip, but have to say that finding an abscess of the pancreas, or, if you please, an enlarged and hardened spleen and a kink in the bowel, confessedly causable in many ways, is no evidence that decedent ever slipped and thereby strained himself, — and that, if it be, since the testimony of the plaintiff excludes the possibility of a slip while and during the time the work declared on *1238in the petition was done, if the condition found be any evidence of any slip, it must be held that the slip did not occur during the work, and at the time fixed in the petition. I am abidingly of the opinion that the learned trial judge was right in directing a verdict for the defendant, upon the expressed ground by him that there was no evidence of any quick movement or slip.
IV. There could not well be a more effective confession of error than is furnished by an avoidance argument made by the majority. That is, since counsel for appellee has made no argument in this court, except to claim that defendant is under no liability, appellee has conceded that a directed verdict is erroneous which holds that there is no liability under the petition. If one assume the ruling below was that there was no liability, that includes holding there is no liability on the petition. Were that so, the relief due on appeal would be to limit the decision below to one that there is no liability on the petition. If counsel for appellee made no argument, a correct judgment would not be annulled because such judgment was accompanied by an erroneous judgment. And so of a claim in argument by appellee that defendant was under no liability. The most that could effect is that we should not sustain the claim in so far as it is too broad. That appellee claims more than he is entitled to, is no warrant for holding he has conceded away what he is entitled to. The majority has made it the safer course for the appellee to offer no aid to the court. The sole justification for resorting to such a startling rule of appellate practice is, “any port in a storm.”