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Barry was caused by duodenitis." The de- | be for the defendant, if they found that the almand was refused and the defendant excepted. The defendant then asked the court to submit, in connection with the general verdict, the special question as to whether the assured died of duodenitis. The request was refused and the defendant excepted.

leged injury was not sustained by Doctor Barry, or that the injury was not effected through violent means, or through accidental means, or through external means, or that death occurred directly or indirectly in consequence of disease or bodily infirmity, or partly or wholly from disease, or not from duodenitis; and that they were not at liberty to speculate as to what occurred in the jump, but must be governed by the evidence of witnesses on the trial.

The defendant then requested the court to charge the jury as follows: "It appears from the evidence in this case that by the policy in suit the defendant company accepted John S. Barry as a member of class AA, and in effect The court refused to give these instructions agreed to levy an assessment of two dollars severally, except as contained in its general upon each member of said class, and to pay charge, and the defendant excepted to each rethe same to the plaintiff if said John S. Barry fusal. This makes it necessary to set forth the should die of bodily injuries, effected through parts of the charge to the jury which are inexternal, violent, and accidental means, but involved in the several requests. They are as no event to pay more than $5,000. Before the follows, and the defendant excepted at the time plaintiff can recover in this case she must show separately to each part which is contained in that the defendant, when it received the proof brackets: of death, on or about July 15th, 1883, either had cash on hand belonging to class AA, or levied an assessment upon the members, and by that means the defendant received money which belonged to class AA. By the evidence in suit it appears that there were over 4,000 members belonging to class AA during the months of June and July, 1883, who were subject to assessment of two dollars per man, and that, on June 1st, 1883, an assessment was made upon members belonging to class AA, and that on June 29th, 1883, the defendant had on hand $2,060.15 belonging to class AA, and that an assessment was then pending and in process of collection. This evidence does not show any cash on hand belonging to class AA on July 15th or at any later date; nor is there any other evidence in the case which would show that fact or that any assessment was levied. Therefore the plaintiff cannot recover in this action, and you are instructed to return a verdict for the defendant." The court refused to give this instruction and the defendant excepted.

"By the terms of the certificate it was provided that, to entitle the beneficiary to the sum of five thousand dollars, the death should be occasioned by bodily injuries alone effected through external, violent, and accidental means; also, that the benefits of the insurance should not extend to any injury of which there was no external and visible sign, nor to any injury happening, directly or indirectly, in consequence of disease, nor to any death or disability caused wholly or in part by bodily infirmities or disease existing prior or subsequent to the date of the certificate, nor to any case except where the injury was the proximate or sole cause of the disability or death.

"The issue between the parties may be briefly stated: It is claimed by the plaintiff that on the occasion mentioned by Dr. Hirschmann, when the deceased was at Iron Mountain, he sustained an injury by jumping from a platform to the ground; that this injury was effected by such means as are mentioned in the certificate; that the deceased, at the time of the alleged accident, was in sound physical condiThe defendant then separately requested the tion and in robust health; and that the alleged court to charge the jury to find for the defend-injury was the proximate and sole cause of ant because no accident within the true intent death. and meaning of the policy occurred to Doctor Barry; and that he did not die from duodenitis; and that they must find for the defendant if he, in jumping, alighted squarely on his feet, or if they found that the jump did not result in the obstruction or occlusion of the duodenum; and that there was no evidence of any wrenching, twisting, or straining of the body in the jumping; and that, considering the character of the injury alleged in the case and the dif ficulty attending its proper investigation, great weight should be given by the jury to the opinion of scientific witnesses accustomed to investigate the causes and effects of injury to the alimentary canal, and a distinction should be made in favor of the opinion of those accustomed to use the most perfect instruments and processes, and who are acquainted with the most recent discoveries in science and the most perfect methods of treatment and investigation.

The court refused to give these instructions severally, and the defendant excepted to each refusal.

The defendant also separately requested the court to charge the jury that their verdict must

"The defendant, on the other hand, denies that the deceased sustained any injury that was effected through accidental means, and also contends that if any injury was sustained, it was one of which there was no external or visible sign, within the meaning of the policy, and that the supposed injury was not the cause of the death of the deceased, but that he died from natural causes. The case, therefore, resolves itself into three points of inquiry:

First. Did Dr. Barry sustain internal injury by his jump from the platform on the occasion testified to by Dr. Hirschmann?

"Second. If he did sustain injury as alleged, was it effected through external, violent and accidental means, within the sense and meaning of this certificate, and was it an injury of which there was an external and visible sign?

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Third. If he was injured as claimed, was that injury the proximate cause of his death? "To entitle the plaintiff to a verdict, each and all of these questions must be answered by you in the affirmative, and if, under the testimony, either one of them must be negatively answered, then your verdict must be for the defendant.

["The first question (viz., Was the deceased, | the platform with his eyes open, for his own Dr. Barry, injured by jumping from the plat- convenience, in the free exercise of his choice, form?) is so entirely a question of fact, to be and not from any perilous necessity. He endetermined upon the testimony, that the court countered no obstacle in jumping, and he must submit it without discussion to your de- alighted on the ground in an erect posture. So termination. In passing upon the question, far we proceed without difficulty; but you must you will consider all the circumstances of the go further and inquire, and here is the precise occurrence as laid before you in the testimony; point on which the question turns: Was there the apparent previous physical condition of Dr. or not any unexpected or unforeseen or involBarry; the subsequent occurrences and cir- untary movement of the body, from the time cumstances tending to show the change in his Dr. Barry left the platform until he reached condition; the relation in time which the first the ground, or in the act of alighting? Did he developments of any trouble bore to the time or not alight on the ground just as he intended when he jumped from the platform; the nature to do? Did he accomplish just what he inof his last sickness; and the symptons disclosed tended to, in the way he intended to? Did he in its progress and termination.] or not unexpectedly lose or relax his self control, in his downward movement? Did his feet strike the ground as he intended or expected, or did they not? Did he or not miscalculate the distance, and was there or not any invol untary turning of the body in the downward movement, or in the act of alighting on the ground? These are points directly pertinent to the question in hand.]

"Further, you will inquire what evidence, if any, did the post-mortem examination and any and all subsequent examinations of the parts alleged to have been the seat of the supposed in jury furnish of an actual physical injury; [what connection, if any, does there or does there not appear to be between the act of jumping from the platform and the subsequent events and circumstances which culminated in death, including the result, as you shall find it to be, of the post-mortem investigations. The question is before you in the light of all proven facts, for determination. The court cannot indicate any opinion upon it without invading your exclusive province; and by your ascertainment of the facts the parties must be bound.]

["There is presented in the case a train of circumstances. Do they or not, so to speak, form a chain connecting the ultimate result with such a previous cause as is alleged? Was the act of jumping from the platform adequate or inadequate to produce an internal injury? Thus you may properly pursue the inquiry, guided by and keeping within the limits of the testimony.]

"If you find that injury was sustained, then the next question is, Was it effected through external, violent, and accidental means? This is a pivotal point in the case, and therefore vitally important. The means must have been external, violent and accidental. Did an accident occur in the means through which the alleged bodily injury was effected?

"And I instruct you that if Dr. Barry jumped from the platform and alighted on the ground in the way he intended to do, and nothing unforeseen, unexpected, or involuntary occurred, changing or affecting the downward movement of his body as he expected or would naturally expect such a movement to be made, or causing him to strike the ground in any different way or position from that which he anticipated or would naturally anticipate, then any resulting injury was not effected through any accidental means. [But if, in jumping or alighting on the ground, there occurred, from any cause, any unforeseen or involuntary movement, turn or strain of the body which brought about the alleged injury, or if there occurred any unforeseen circumstance which interfered with or changed such a downward movement as he expected to make, or as it would be natural to expect under such circumstances, and as caused him to alight on the ground in a different position or way from that which he intended or expected, and injury thereby resulted, then the injury would be attributable to accidental means.]

"The jumping off the platform was the "Of course it is to be presumed that he exmeans by which the injury, if any was suspected to reach the ground safely and without tained, was caused.]

["Now, was there anything accidental, unforeseen, involuntary, unexpected, in the act of jumping, from the time the deceased left the platform until he alighted on the ground?]

["The term 'accidental' is here used in its ordinary, popular sense, and in that sense it means happening by chance; unexpectedly taking place; not according to the usual course of things;' or not as expected.]

["In other words, if a result is such as follows from ordinary means voluntarily employed in a not unusual or unexpected way, then, I suppose, it cannot be called a result effected by accidental means.]

injury. [Now, to simplify the question and apply to its consideration a common-sense rule, Did anything, by chance or not as expected, happen, in the act of jumping or striking the ground, which caused an accident? This, I think, is the test by which you should be gov erned in determining whether the alleged injury, if any was sustained, was or was not effected through accidental means.]

"You have the testimony in relation to the occurence which it is claimed by the plaintiff produced in Dr. Barry a mortal injury. Taking it all into consideration and applying to the facts the instruction of the court, you will determine whether, if any injury was sustained, ["But if in the act which precedes the injury it was effected through external, violent and something unforeseen, unexpected, unusual, accidental means. The defendant claims that occurs which produces the injury, then the in- if Dr. Barry did sustain injury, it was one of jury has resulted from the accident or through which there was no external and visible sign, accidental means.] within the meaning of the certificate of insur ["We understand, from the testimony, with-surance, and, therefore, that the plaintiff is not out question, that the deceased jumped from entitled to recover. [Counsel are understood to

"It is claimed by the plaintiff that the sup

contend that no recovery could be had under a | injury merely brought into activity a then excertificate of insurance in the form and terms of isting, but dormant, disorder or disease, and this one, if the injury was wholly internal. In the death of the deceased resulted wholly or in that view the court cannot concur. It is true part from such disease, then it could not be there must be an external and visible sign of the said that the injury was the sole or proximate injury, but it does not necessarily follow from cause of death. that that the injury must be external. That is not the meaning or construction of the certifi-posed jar or shock said to have been produced cate. Such an interpretation of the contract by jumping from the platform caused some diswould, in the opinion of the court, sacrifice placement in the duodenum; that it became ocsubstance to shadow and convert the contract cluded, to use the expression that has been used itself into a snare, an instrument for the de- by witnesses; that there was constriction and struction of valuable rights. Visible signs of occlusion of that intestine, which was accominjury, within the meaning of this certificate, panied with consequent inflammation-in short, are not to be confined to broken limbs or bruises that the deceased had duodenitis, as the direct on the surface of the body. There may be result of the alleged original injury, and in conother external indications or evidence which sequence died. This contention is urged upon are visible signs of internal injury. Complaint all the circumstances of the case, and upon the of pain is not a visible sign because pain you testimony offered by the plaintiff tending to cannot see. Complaint of internal soreness is show the symptoms which accompanied the not such a sign, for that you cannot see; but if last sickness, the diagnosis of the case made by the internal injury produces, for example, a pale attending physicians, and the alleged developand sickly look in the face, if it causes vomit-ments of the autopsy. It is contended in behalf ing or retching, or bloody or unnatural dis- of the defendant, that there was no constriccharges from the bowels, if, in short, it sends tion, occlusion or inflammation of the duodeforth to the observation of the eye, in the strug-num; that the deceased did not have duodenitis; gle of nature, any signs of the injury, then those are external and visible signs, provided they are the direct results of the injury; and, with this understanding of the meaning of the certificate of insurance, and upon the evidence, you will say whether, if Dr. Barry was injured as claimed, there were or were not external and visible signs of the injury; and the determination of this point will involve the consideration of the question whether what are claimed here to have been external and visible signs were, in fact, produced by-were the result of-the injury, if any were sustained.]

The next question is, If Dr. Barry was injured as claimed, was the injury the sole or proximate cause of his death? Interpreting and enforcing the certificate of insurance according to its letter and spirit, it must be held that, if any other cause than the alleged injury produced death, there can be no recovery; so that, to entitle the plaintiff to recover, you must be satisfied that the alleged injury was the proximate cause of death. Whether a cause is proximate or remote does not depend alone upon the closeness in the order of time in which certain things occur. An efficient, adequate cause being found, it must be deemed the true cause, unless some other cause not incidental to it, but independent of it, is shown to have intervened between it and the result. If, for example, the deceased sustained injury to an internal organ, and that necessarily produced infiammation, and that produced a disordered condition of the injured part, whereby other organs of the body could not perform their natural and usual functions, and in consequence the injured person died, the death could be properly attributed to the original injury. In other words, if these results followed the injury as its necessary consequence, and would not have taken place had it not been for the injury, then I think the injury could be said to be the proximate or sole cause of death; but if an independent disease or disorder supervened upon the injury, if there was an injury-I mean a disease or derangement of the parts not necessarily produced by the injury-or if the alleged 131 U.S. U. S., Book 33.

and that no physical injury is shown to have resulted from jumping from the platform. This claim is based upon the contention that the various symptoms manifested in the last sickness of the deceased were consistent with natural causes, with some undiscovered organic trouble not occasioned by violence or sudden injury; that the conclusions of the physicians who made the post-mortem examination were erroneous; and that the microscopic examination of the parts in New York demonstrated such alleged error. Concerning the microscopic test made in New York by Dr. Carpenter, the plaintiff contends that it is not reliable and should not be accepted, for reasons urged in argument and which I need not repeat.

"Now, between these conflicting claims, weighing and giving due consideration to all the testimony, you must judge. If the deceased died of some disease or disorder not necessarily resulting from the original injury, if there was an injury, then the defendant is not liable under this certificate of insurance; but if the deceased received an internal injury which in direct course produced duodenitis, and thereby caused his death, then the injury was the proximate cause of death.

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"In considering this case you ought not to adopt theories without proof, nor to substitute bare possibility for positive evidence of facts testified to by credible witnesses. Mere possibilities, conjectures, or theories should not be allowed to take the place of evidence; where the weight of credible testimony proves the existence of a fact, it should be accepted as a fact in the case. Where, if at all, proof is wanting and the deficiency remains throughout the case, the allegation of fact should be deemed not established.

"There has been considerable testimony given by physicians, what we call expert testimony, and in the consideration of that testimony it is your province to determine which of these medical witnesses is right in his statement, opinion or judgment. It is purely a question of fact for you, which of these physicians was most competent to form a judgment as to the

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cause of Dr. Barry's death. Who has had the best opportunities for forming a judgment as to the cause of death?

"All this is to be taken into consideration by you in weighing and deliberating upon this evidence. .

"I am asked to instruct you that, before the plaintiff can recover, she must show that when the defendant received the proofs of death, on or about July 15, 1883, it either had cash on hand belonging to class AA, or that it levied an assessment upon the members, and by that means received money which belonged to class AA. This construction of the certificate is upon the theory that, to entitle the plaintiff to recover, it is essential to show either that it had money on hand with which to meet this loss, or that it has made an assessment from which the loss can be paid.

"This instruction I must decline to give you, for the reason that it appears from the evidence that there were more than a sufficient number of members in class AA to pay the five thousand dollars on this certificate, if an assessment were to be made; and I regard it the duty of the association to make the assessment when the death loss is proved, and where the case is one upon which the association is liable to pay the loss.

"Now, to sum up the case, if you find from the evidence that the deceased, on the 20th day of June, 1883, sustained a bodily injury, and that such injury was effected through external, violent and accidental means, and was one of which there was an external and visible sign, and that the injury was the proximate or sole cause of death, then the plaintiff should have a verdict in her favor.

"If, on the contrary, you find either that the injury was not sustained, or that, if it was sustained, it was not effected through external, violent and accidental means, or was an injury of which there was no external and visible sign, or that it was not the proximate or sole cause of death, then your verdict should be for the defendant.

"If you find the plaintiff entitled to recover you will render a verdict in her favor for the sum of five thousand dollars, with interest at seven per cent, computed from the 15th of September, 1883, to the present time, adding the interest to the principal, so that your verdict will show the gross sum."

shall direct the jury to find a special verdict. Such verdict shall be prepared by the court in the form of questions, in writing, relating only to material issues of fact and admitting a direct answer, to which the jury shall make answer in writing. The court may also direct the jury, if they render a general verdict, to find in writing upon any particular questions of fact, to be stated as aforesaid. In every action for the recovery of money only, or specific real property, the jury may, in their discretion, when not otherwise directed by the court, render a general or a special verdict."

It is contended, for the defendant, that the court erred in refusing its demand to submit a special verdict in the case, as provided by the rules of practice in the State. It is, however, conceded, in the brief of its counsel, that the refusal to submit a special question in connection with the general verdict, was not error, in view of the ruling of this court in Indianapolis R. R. Co. v. Horst, 93 U. S. 291, 299 [23: 898, 900]. In that case this court adhered to its views expressed in Nudd v. Burrows, 91 U. S. 426, 442 [23: 286, 290], that the personal conduct and administration of the judge in the discharge of his separate functions was neither practice, pleading, nor a form or mode of proceeding, within the meaning of 5 of the Act of June 1, 1872 (17 Stat. at L. 197), now § 914 of the Revised Statutes, and further said that the statute was not intended to fetter the judge in the personal discharge of his accustomed duties, or to trench upon the common-law powers with which in that respect he is clothed. This principle has been uniformly applied since by this court; and we are of opinion that it covers the demand made in this case that the court should submit a special verdict, as provided by the rules of practice in the State of Wisconsin, and should submit the particular question mentioned in that connection.

(2.) It is also urged as error that the court did not restrict the case to the issue made by the pleadings; that that issue was, that the assured died from "a stricture of the duodenum," produced by the accident; and that the issue submitted by the court was accidental death from anything. The court very properly refused to instruct the jury that the assured did not die from duodenitis; and its response to the request to instruct them that if they found he did not die from duodenitis, their verdict must After the charge had been given a juryman be for the defendant, was, that it refused to inquired: "Is there any evidence showing that give that instruction" except as contained in the association did make an assessment after the general charge." It is contended, however, receiving proof of Dr. Barry's death?" The for the defendant, that, in the general charge, court replied: ["There is some proof on that the jury were charged in effect, that, if the subject. You need not take that into consid-assured sustained internal injury of any kind eration at all, for I have instructed you that if you should find the facts as I have stated them to you the plaintiff is entitled to recover. You need not take into consideration the matter of assessment."] The defendant excepted to the part in brackets.

(1.) When the trial took place, in December, 1885, the following provision of the state statute was in force in Wisconsin (Rev. Stat. of Wisconsin, 1878, § 2858, title 25, chap. 128, p. 760): "The court, in his discretion, may, and when either party, at or before the close of the testimony and before any argument to the jury is made or waived, shall so request, the court

by his jump, and died therefrom, the plaintiff could recover. But we do not so understand the charge. In a part of it, before set forth, and not excepted to by the defendant, the court distinctly laid before the jury the issue as to the constriction or occlusion of the duodenum, and the contentions of the two parties in regard thereto, and told the jury that they must judge between those conflicting claims, weighing and giving due consideration to all the testimony, and that if the deceased received an internal injury which in direct course produced duodenitis, and thereby caused his death, then the injury was the proximate cause of death.

(3). It is further urged that there was no evi- | dence to support the verdict because no accident was shown. We do not concur in this view. The two companions of the deceased jumped from the same platform, at the same time and place, and alighted safely. It must be presumed not only that the deceased intended to alight safely, but thought that he would. The jury were, on all the evidence, at liberty to say that it was an accident that he did not. The court properly instructed them that the jumping off the platform was the means by which the injury, if any was sustained, was caused; that the question was, whether there was anything accidental, unforeseen, involuntary, unexpected, in the act of jumping, from the time the deceased left the platform until he alighted on the ground; that the term "accidental" was used in the policy in its ordinary, popular sense, as meaning "happening by chance; unexpectedly taking place; not according to the usual course of things; or not as expected;" that, if a result, is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that 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. The jury were further told, no exception being taken, that, in considering the case, they ought not to adopt theories without proof, or substitute bare possibility for positive evidence of facts testified to by credible witnesses; that where the weight of credible testimony proved the existence of a fact, it should be accepted as a fact in the case; but that where, if at all, proof was wanting, and the deficiency remained throughout the case, the allegation of fact should not be deemed established.

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one for nominal damages, on the ground that the contract of the defendant was not to pay any sum absolutely, but only to levy an assessment and pay over the proceeds; and that the remedy of the plaintiff was solely in equity, for a specific performance of the contract. The policy says: "The principal sum represented by the payment of two dollars by each member in division AA of the association, as provided in the by-laws," not to exceed $5,000, "to be paid" to the wife. Although the bylaws state that the object of the association "is to collect and accumulate a fund" for the purpose named, and that, on the requisite proof of bodily injury to, and the death of, a member of a division, the board of directors shall immediately order an assessment of two dollars upon each person who was a member of the division to which the deceased belonged at the time of his death, and pay the amount so collected, according to the prescribed schedule of classification, to the proper beneficiary, the policy does not contract to make an assessment, nor does it make the payment of any sum contingent on an assessment, or on the collection of an assessment. It agrees to pay a principal sum represented by the payment of two dollars for each member in division AA, within sixty days after proof of death. The association always knows the number of members, which is to be multiplied by two. It has sixty days in which to make the assessment and collect what it can, before making any payment, but it takes the risk as to those who do not pay in time or at all. The liability to assessment is all that concerns the beneficiary; not the making or collection of an assessment; and the liability to assessment only measures the amount to be paid under the policy.

In view of the amendment made to the complaint, at the trial, which was not excepted to, and of the testimony of the secretary of the defendant, the charge of the court on the subject of an assessment was proper, and so was the verdict.

In Martin v. Travelers Ins. Co. 1 Fost. & F. 505, the policy was against any bodily injury resulting from any accident or violence, provided that the injury should be occasioned by any external or material cause operating on the In the cases cited by the defendant either the person of the insured." In the course of his policy was different from the present one, in business he lifted a heavy burden and injured providing only for levying an assessment and his spine. It was objected that he did not sus-paying the amount collected, or there was no tain bodily injury by reason of an accident. The plaintiff recovered.

In North American Ins. Co. v. Burroughs, 69 Pa. 43, the policy was against death "in consequence of accident," and was to be operative only in case the death was caused solely by an "accidental injury." It was held that an accidental strain, resulting in death, was an accidental injury within the meaning of the policy, and that it included death from any unexpected event happening by chance, and not occurring according to the usual course of things.

The case of Southard v. Railway Passengers Assurance Co. 34 Conn. 574, is relied on by the defendant. That case, though pending in a otate court in Connecticut, was decided by an arbitrator, who was then the learned District Judge of the United States for the District of Connecticut. But if there is anything in that decision inconsistent with the present one, we must dissent from its views.

(4.) It is contended that no recovery at law could be had on this policy, or, at most, only

proof of the assessable number of members.

We see no error in any thing excepted to by the defendant, and the judgment is affirmed.

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A contract, by which defendants, for a valuable consideration, agreed not to sell a certain me

NOTE.-Contracts against public policy.

The prohibition in a contract in restraint of trade tect the party for whose benefit the contract is should not extend any further than will fully promade in his occupation or business. Long v. Towì, 42 Mo. 545; Pike v. Thomas, 4 Bibb, 486; Grundy v. Edwards, 7 J. J. Marsh. 368; Turner v. Johnson, 7 Dana, 435; Grasselli v. Lowden, 11 Ohio St. 349;

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