I dissent.
I agree with the beneficiaries that Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305 [163 P.2d 689], decided by a unanimous court, is controlling here. The attempt on the part of the majority of this court to distinguish it without overruling it, in my opinion, but serves to point out the correctness of that decision as applied to the facts presented here. We said there that “[on] the other hand there is authority for what in our opinion is the correct rule, that the presence of preexisting disease or infirmity will not relieve the insurer from liability if the accident is the proximate cause of death; and that recovery may be had even though a diseased or infirm condition appears to actually contribute to cause the death if the accident sets in progress the chain *481of events leading directly to death, or if it is the prime or moving cause. (Scanlan v. Metropolitan Life Ins. Co., (C.C.A. 7th, 1937), 93 F.2d 942, 946; Kelly v. Prudential Ins. Co. of America (1939), 334 Pa. 143 [6 A.2d 55, 59] ; 1 Appleman, Insurance Law & Practice (1941), pp. 497, 498; 6 Couch on Insurance (1930), § 1249, p. 4569; cf. Hanna v. Interstate B. M. Acc. Assn., 41 Cal.App. 308, 310 [182 P. 771].)” It was also said there that “ [a]lthough it appears that the insured was suffering from an incurable cancer and was under the influence of narcotics given to relieve pain, and that by reason of his weakened and infirm condition he may have been less able than a normal person to withstand the effect of the injuries, there is evidence from which the court could conclude that the proximate cause of his death was burns received in a fire of accidental origin.”
An analysis of the facts involved here in the light of the rule of the Brooks case shows that the policy provided, under the heading “Definitions,” that it was understood and agreed that “bodily injury which shall occasion death” included, “in addition to the coverage herein provided, death by exposure to the elements or physical exhaustion or drowning resulting from an accident or mechanical or other failure of anything used as a means of conveyance or transportation. ’ ’ (Emphasis added.) Here, the insured suffered from exposure to the elements by reason of the failure of his boat to return to the mainland. The following statement from the majority opinion relative to the medical testimony in this case shows that it was based on the worst kind of hearsay evidence: “Dr. Baird testified that he put ‘acute alcoholism’ on the death certificate because an acquaintance of the deceased informed him that Francis was an alcoholic drinker. According to Dr. Baird, his diagnosis of edema of the brain was based solely on the statement made to him that Francis used intoxicants. Edema of the brain, said Dr. Baird, results either from alcohol or injury ‘and in this case there was no evidence of injury.’ His examination was made by ‘gross’ methods, that is, what he could see with his eyes and feel with his hands, in contradistinction to microscopic study.” It should. be noted that under the provisions of the policy there needed to be no evidence of injury as such. There would be no evidence of injury so far as physical exhaustion was concerned, or in all probability so far as exposure to the elements was concerned. The beneficiaries established the *482facts concerning the ill-fated fishing trip. In all other respects the evidence was highly conflicting. Some witnesses testified that the insured was a heavy drinker; others that he never drank to excess; still others testified that he rarely drank. The evidence was also in direct conflict as to whether the insured had been ill prior to the fishing trip. The medical testimony was uncertain and conflicting and was, for the most part, based upon insufficient evidence and hearsay. An example is the medical evidence relating to the cause of death: the expert for the beneficiaries testified that the insured died of bronchial pneumonia; the expert for the insurer testified that he “didn’t believe” the insured died of pneumonia, and that it was his opinion that the primary cause of death was a “condition which led to circulatory collapse and edema and congestion of the lung” which occurred “primarily” in acute heart failure. Other evidence showed that an electrocar diagram made for the insured two years before his death established that Francis had a normal heart for a man of his age.
The evidence showed that the insured, after suffering the mishap, had chills, complained of not feeling well to the extent of contacting his doctor, taking the prescribed drugs, and making plans to go to the desert to recuperate. There is nothing to show that any previous physical condition substantially or materially contributed to the death of the insured. The majority admits that the policy sued on here is substantially the same as in the Brooks case and that the insurer may be held liable although death is caused partly by a preexisting disease or infirmity and partly by accident so long as the accident is the prime or moving cause. In view of the rule of the Brooks case and the facts presented here, one of the instructions complained of was a misstatement of the law and highly prejudicial to the beneficiaries. That instruction told the jury, “Furthermore plaintiffs may not recover if the evidence affirmatively shows that intentional self-injury, disease or natural causes caused or contributed to the death of the insured directly or indirectly.” In the majority opinion it is said, “The first two sentences of the instruction unduly stress the significance of any contribution to the death of Francis by pre-existing disease or intentional self-injury. To that extent the instruction is inconsistent with the rule on causation as laid down in the Brooks case, and as stated to the jurors in several other instructions.” (Emphasis added.) As I have heretofore pointed out, the *483Brooks case qualifies the provision by holding that the insurer is not relieved from liability if a preexisting disease or infirmity “appears to actually contribute to cause the death if the accident sets in progress the chain of events leading directly to death, or if it is the prime or moving cause.” (Emphasis added.) The majority explain away the inconsistencies by the argument that other instructions followed the rule of the Brooks case. For every instruction stating the rule of the Brooks case, there is another instruction which is inconsistent with it. For example, the jury was directed to deny recovery if the death was caused partially by disease and partially by accident. Still another instruction informed the jury that plaintiffs must prove, by a preponderance of the evidence, that the insured met his death by accident or exposure and that the death occurred “solely and independently” (italics added) of any other cause.
The most flagrantly prejudicial, and erroneous, instruction was that which placed upon the beneficiaries the burden of proving that the insured’s death was not caused by intentional self-injury, disease or natural causes. The majority concedes that “ordinarily the burden is upon the insurer to prove a true excepted cause or excluded risk in order to defeat liability upon that ground.” In order to avoid the effect of this concession, it is held that these .exceptions were not exceptions at all. The insurer pleaded, in its answer, as separate and affirmative defenses, that death was caused by disease or by natural causes; as an amendment to the answer, another affirmative defense was added—that death was caused by intentional self-injury. It had been held prior to the Brooks case that the absence of disease was a part of the plaintiff’s case; and, prior to the present case, it had also been held that death by intentional self-injury, or suicide, was part of the insurer’s case and that the burden of proof was upon the insurer. In order to hold that the burden of proving that the death was not caused by intentional self-injury was on the plaintiffs the majority says “ [b]y analogy then, in a suit upon an accident policy, by proof of accident proximately causing death, the beneficiary necessarily negatives ‘intentional self-injury’ ” and relies upon Barber v. Industrial Com., 241 Wis. 462, 464-465 [6 N.W.2d 199, 143 A.L.R. 1222], Travelers’ Ins. Co. v. Wilkes, 76 F.2d 701, New York Life Ins. Co. v. Gamer, 303 U.S. 161 [58 S.Ct. 500, 82 L.Ed. 726, 114 A.L.R. 1218], Griffin v. Prudential Ins. Co., 102 Utah 563 [133 P.2d 333, 144 A.L.R. 1402].
*484The majority say “ [I]t is not significant that Underwriters pleaded as affirmative defenses that the death of Francis occurred as a result of either intentional self-injury or disease and natural causes, A denial that death was occasioned by a bodily injury within the meaning of the policy is a sufficient plea. An additional defense that it was the result of intentional self-injury or disease does not shift the burden of proof to the defendant. [Citations.] ” All of this rests upon the reasoning that intentional self-injury is the antonym of accidental and therefore expresses a concept which manifestly is the antithesis of a death occasioned by accident. ‘ ‘ The rule supported by the overwhelming weight of authority, in cases involving accident policies or other policies with accident features containing express conditions or exceptions excluding or limiting the coverage of the policy as to an injury or death which would otherwise be within such coverage, is that the burden of proving that the insured’s injury or death was within such conditions or exceptions is on the insurer, and that the plaintiff is not under any burden of negativing application of such exception or conditions.” (Emphasis added; 142 A.L.R. 746.) Where the instructions erroneously place the burden of proof upon the wrong party, the error is prejudicial (Anderson v. Mothershead, 19 Cal. App.2d 97 [64 P.2d 995] ; Westberg v. Willde, 14 Cal.2d 360 [94 P.2d 590]; Howard v. Worthington, 50 Cal.App. 556 [195 P. 709]; Ferguson v. Nakahara, 43 Cal.App.2d 435 [110 P.2d 1091] ; Ross v. Baldwin, 44 Cal.App.2d 433 [112 P.2d 666]; Scott v. Renz, 67 Cal.App.2d 428 [154 P.2d 738]).
Two California cases (Dennis v. Union Mut. Life Ins. Co., 84 Cal. 570 [24 P. 120], and Bebbington v. California Western States Life Ins. Co., 30 Cal.2d 157 [180 P.2d 673, 1 A.L.R.2d 361]) are distinguished because they involved life insurance policies which contained exceptions if death resulted from suicide. Postler v. Travelers’ Ins. Co., 173 Cal. 1 [158 P. 1022], relied upon the Dennis case without noting that the Dennis case involved a life insurance policy; Mah See v. North American Acc. Ins. Co., 190 Cal. 421 [213 P. 42, 26 A.L.R. 123], was an action upon a life insurance policy as was Housh v. Pacific States Life Ins. Co., 2 Cal.App.2d 14 [37 P.2d 741], As nearly as can be ascertained from the majority opinion, so far as the burden of proof is concerned, the following cases are overruled: Mah See v. North American Acc. Ins. Co., 190 Cal. 421 [213 P. 42, 26 A.L.R. 123]; Dennis v. Union Mut. Life Ins. Co., 84 Cal. 570 [24 P 120] ; *485Bebbington v. California Western States Life Ins. Co., 30 Cal.2d 157 [180 P.2d 673, 1 A.L.R.2d 361] ; Postler v. Travelers’ Ins. Co., 173 Cal. 1 [158 P. 1022]. Housh v. Pacific States Life Ins. Co., 2 Cal.App.2d 14 [37 P.2d 741], is disapproved. Apparently, the rule is now to be that the burden of proof is to be on plaintiff to prove that an exception to the policy did not occur to cause the death in an accident policy and upon the defendant where a life insurance policy is concerned. I say, “apparently,” because it is not clear whether the burden is to be the same so far as both types of policy are concerned.
It is interesting to note that the majority opinion will have the effect of overruling sub silentio many other California cases. It is also interesting to note that of the cases relied upon for the proposition that the burden of proof was not upon the defendant, only one is a California case (Kellner v. Travelers’ Ins. Co., 180 Cal. 326 [181 P. 61]). The other cases relied upon for that proposition are New York Life Ins. Co. v. Gamer, 303 U.S. 161 [58 S.Ct. 500, 82 L.Ed. 726, 114 A.L.R. 1218] (a life insurance policy case arising in Montana and involving the question of accidental, or suicidal, death); Travelers’ Ins. Co. v. Wilkes, 76 F.2d 701 (a case arising in Florida and involving a life insurance policy and the question of accidental, or suicidal, death); and a New York case—Whitlatch v. Fidelity & Casualty Co., 149 N.Y. 45, 58 [43 N.E. 405], Other cases relied on are from Utah, Arizona and Wisconsin.
In view of the medical testimony that there was no evidence of “injury,” I agree with the beneficiaries that the meaning of bodily injury under the policy should have been given to the jury. It is my opinion that the instructions given were conflicting and confusing and weighted in favor of the insurer. The evidence was in direct conflict. The insured was dead; there were no signs of outward “injury.” According to the medical testimony the insurer’s medical expert testified that the insured could not have died of pneumonia because the clothing was not disarranged. As I have pointed out, physical exhaustion would leave no outward signs, nor, in all probability, would death from exposure to the elements.
I believe that in a case of this type, the instructions should be fairly and concisely given; that when they are as confusing and conflicting as they are in the case at bar, no good purpose may be served by endeavoring to reconcile them in order to reach a result. I feel, too, most strongly that California cases *486should not be overruled and strained constructions placed upon other cases in order to reach a desired result. As I stated at the beginning of this dissent, it is impossible to distinguish the Brooks case from the one at bar, and any attempt to do so can lead to nothing but confusion.
For these reasons, I would reverse the judgment.
Appellants’ petition for a rehearing was denied April 7, 1954. Carter, J., was of the opinion that the petition should be granted.