
131 U.S. 100 (1889)
UNITED STATES MUTUAL ACCIDENT ASSOCIATION
v.
BARRY.
No. 240.
Supreme Court of United States.
Argued April 9, 1889.
Decided May 13, 1889.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF WISCONSIN.
*115 Mr. B.K. Miller, Jr., for plaintiff in error.
Mr. William F. Vilas for defendant in error.
Mr. George Mc Whoeter and Mr. C.B. Bice filed a brief for defendant in error.
*119 MR. JUSTICE BLATCHFORD, after stating the case as above reported, delivered the opinion of the court.
(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, 760, § 2858, title 25, c. 128:) "The court, in its 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 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, *120 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 Railroad Co. v. Horst, 93 U.S. 291, 299. In that case this court adhered to its views expressed in Nudd v. Burrows, 91 U.S. 426, 442, 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. 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 be for the defendant, was, that it refused to give that instruction "except as contained in the general charge." It is contended, however, for the defendant, that, in the general charge, the jury were charged, in effect, that, if the assured sustained internal injury of any kind 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 *121 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 evidence 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.
In Martin v. Travellers' Ins. Co., 1 Foster & Fin. 505, the policy was against any bodily injury resulting from any accident or violence, "provided that the injury should be occasioned *122 by any external or material cause operating on the person of the insured." In the course of his business he lifted a heavy burden and injured his spine. It was objected that he did not sustain bodily injury by reason of an accident. The plaintiff recovered.
In North American Ins. Co. v. Burroughs, 69 Penn. St. 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 Connecticut, 574, is relied on by the defendant. That case, though pending in a state 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 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 $5000, "to be paid" to the wife. Although the by-laws 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 *123 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 the cases cited by the defendant either the policy was different from the present one, in providing only for levying an assessment and paying the amount collected, or there was no proof of the assessable number of members.
We see no error in anything excepted to by the defendant, and the judgment is
Affirmed.
