Counsel for plaintiff earnestly insist that our former opinion and decree are erroneous for two reasons, first, because we held that plaintiff was not totally disabled by the hernia, and, second, because we held that the hernia was not brought on by "accidental means."
If our holding that the hernia was not caused by accidental means is correct, then the question whether plaintiff was totally or only partially disabled passes out of the case.
Plaintiff was insured against effects resulting from bodily injuries sustained "solely through external, violent andaccidental means," and not against the effects resulting merely from accidental injuries.
If it be true that plaintiff's present affliction is due to an accident which he sustained on December 14, 1930, as he says, it does not necessarily follow that he is entitled to recover under the terms of the policy. This is conceded by plaintiff's counsel. But they contend that the accident was due solely to accidental means. Counsel for defendant dispute this.
These are the facts relating to the injury, as told by the plaintiff himself: He is forty-six years old, and up to December 14, 1930, was sound in body. He was then and had been for eight years employed by the Weber-King Lumber Company as a master mechanic. On the date named he and a helper were straightening an axle, using a jackscrew. He *Page 987 was pulling on the lever or handle of the jackscrew and says, "It was a pretty hard pull. There was a kink in the axle and I had to brace my foot against one side of the truck in order to pull it."
He was asked to state what injury he sustained and what pain he felt and he said, "Well, I felt a severe pain in my groin and turned sick and told J.T. Laird, (he being the helper) that I had hurt myself and I quit and he finished the job himself, straightened the axle."
According to his testimony and that of his physician, there developed within a short time an inguinal hernia at or near the place where he felt the pain. There is nothing further said concerning the circumstances under which the injury was sustained. We must therefore assume that plaintiff voluntarily did in a natural way that which he intended to do; that nothing unforeseen or unexpected happened except the result — the injury. There was no slip of the feet or hands, no break or loosening of the machinery to cause a sudden jerk or jar, and nothing to increase the load which he expected to lift. He does not say that after he took hold of the lever to pull he found the load heavier than he expected or that he found it necessary to or did put forth more effort than he originally intended. He did not involuntarily or unexpectedly lose control of either his mental faculties or his muscles so as to bring about a change in the manner of doing that which he intended to do. Nothing unexpected happened except the result.
Under these circumstances we reaffirm our original holding that the injury, though accidental, *Page 988 did not result from "accidental means."
The overwhelming weight of authority is to the effect that, if the means which produces an injury is intentionally, voluntarily used in the usual and expected way, the resulting injury, though unexpected, unusual, or unanticipated, is not produced by "accidental means." But if in the act which precedes the injury there intervenes something unforeseen or unexpected, or if something unusual occurs which produces the injury, then it may be said that the injury resulted through "accidental means."
Or, as stated in a case note found in 45 A.L.R. 1528:
"If a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it can not be called a result effected by accidental means, within the meaning of an accident insurance policy. Mutual Life Insurance Company v. Dodge (1926, C.C.A. 4th) 11 F.2d 486.
"But if, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs, which produces the injury, then the injury has resulted through accidental means."
This case note supplements those on the same subject-matter found in 7 A.L.R. 1131, 14 A.L.R. 788, 35 A.L.R. 1191, and 42 A.L.R. 243, where practically all the cases touching the subject are cited and reviewed.
Counsel for plaintiff cite the case of Brown v. Continental Casualty Company, 161 La. 229, 108 So. 464, 467, 45 A.L.R. 1521, as supporting a contrary view. *Page 989
The holding in that case, under the facts there found, is not inconsistent with our holding here. Dr. Brown was accustomed to inhaling chloroform and taking chloral to relieve headache and insomnia and was found dead in bed one morning, "the evidence being that he had fallen asleep while inhaling the chloroform." He inhaled chloroform intentionally, voluntarily, expecting relief from his suffering as he had obtained on many previous occasions. He did not expect that death would be the result. His death was therefore unexpected, unforeseen — an accident. The inhaling of the chloroform was the "means" by which the accident happened. But between the moment he voluntarily or intentionally began to inhale chloroform and the moment of his death, which was an unexpected result, something unforeseen, unintentional, accidentally happened; he inhaled too much or an overdose and it was the overdose which caused his death. He intended to inhale the usual quantity in the usual way and, if he had and death had resulted, there would have been no liability under the particular provisions of the policy which insured only against injury or death through "accidental means." But the voluntary inhaling of a usual and expected dose would not have and did not cause death. On the contrary, death was caused by the inhaling of an overdose which was not expected and intentional, but unexpected, unintentional, and purely accidental. The overdose and not the usual, intended quantity being the "means," by which death resulted and the taking of the overdose being accidental, it follows that death was caused by "accidental means."
In the course of its opinion the court said: *Page 990
"In the case before us, there was this element of unexpectedness, that the insured inhaled more chloroform than he expected to inhale. The means or cause of his death was not that he intentionally inhaled chloroform, which he had done many times before, but that he unintentionally inhaled too much chloroform."
The court in thus speaking was not referring to the "element of unexpectedness" in the result but to the "element of unexpectedness" in the means which brought about the result and that is the crux of the case. The court illustrated, saying:
"If a man intentionally takes a dose of medicine, but unintentionally takes poisonous medicine, and thereby kills himself, would the verdict of the coroner's jury be that the cause of death was that the man intentionally swallowed medicine, or would it be that the cause of death was that the man unintentionally swallowed poison?"
Following this illustration by the court, two cases are cited, in one of which it was found that death resulted from an overdose of medicine prescribed by a physician and in the other that death resulted from taking poison by mistake. In each of the cases it was held that death was caused by "accidental means," the theory being that there was an "element of unexpectedness" in the means which caused death.
The court in the Brown Case went on to say:
"If we should hold that the death in this instance, which wascaused by the accidental inhaling of too much chloroform, was not a death by accidental means, merely because *Page 991 the inhaling of some of the chloroform was not accidental, we would find it difficult to imagine a case of death by accidental means." (Italics ours.)
What we are asked to hold is that if an unforeseen, unexpected, unanticipated injury results from the doing of an act voluntarily and as expected, the doing of the act being the means by or through which the injury was caused, then the injury was caused by "accidental means."
We cannot so hold. On the contrary we hold that unless there is an accidental element in the act which precedes and causes the injury, there can be no recovery under a policy which insures only against injuries caused by "accidental means." From this it does not follow that there can be no recovery in any case where the means by which an injury results is voluntarily commenced or begun. It frequently happens that unexpected, accidental elements intervene between the beginning of a voluntary act and the injury. In such cases, if the injury is traceable to the intervening, unexpected happening, and not to the doing of the act as intended, there may be recovery. To illustrate: The plaintiff in the present case voluntarily pulled on the lever of the jackscrew; he did precisely what he intended to do in the way he intended to do it; injury resulted. He cannot recover because the injury resulted from the doing of the act just as it was intended. The pulling on the handle of the jackscrew was the means by which the injury was caused. But there was nothing accidental about the means. He pulled just as he expected to. But if while pulling on the lever his foot had unexpectedly slipped, and due to the slip *Page 992 there had been an unforeseen, unanticipated increase in the strain on his body and the injury had resulted from the increased strain, he could have recovered, even though he was voluntarily pulling on the lever.
Our former decree is correct and is now reinstated and made final.
O'NIELL, C.J., dissents and hands down reasons.
ROGERS, J., dissents.