FEDER V. IOWA STATE TRAVELING MEN'S ASSOCIATION.

[107 IOWA, 538.]

INSURANCE - ACCIDENT - WHAT IS.-While it may be true that an accident is an event which takes place without one's foresight or expectation, and is undesigned, it is not true that every unforeseen, undesigned, and unexpected event is an accident. A result which, though not designed, foreseen, or expected, is yet the natural and dircct effect of acts voluntarily done, or of conditions voluntarily assumed, cannot be said to be accidental.

INSURANCE-ACCIDENT-DEATH BY-RUPTURE OF ARTERY.-Where the death of an insured was due to the rupture of an artery it will not be considered as the result of accident where, in the circumstances attending the rupture, there is no evidence that anything was done or occurred which the insured had not foreseen or planned, except the rupture and its consequences.

Berryhill & Henry and George E. Hubbell, for the appellants.

Cummins, Hewitt & Wright, for the appellee.

538 ROBINSON, C. J. The certificate in suit was issued to one Louis L. Feder, and entitled him to all the benefits accruing from membership in the defendant by virtue of its constitution and by-laws. When the certificate was issued, an article of the constitution of the defendant provided that "whenever the death of a member of this association in good standing shall occur from any accidental cause (except while such member shall be under the influence of intoxicating liquors or narcotics)," and proofs thereof should be made, the 539 proceeds of an assessment of two dollars on each member of the association, not exceeding the sum of five thousand dollars, should be paid to the beneficiary named in the certificate, or to his heirs. or legal representatives, provided, however, that if, at the time of such death, the amount of money in the treasury of the association not otherwise appropriated should exceed the sum of five thousand five hundred dollars, payment of five thousand dollars was to be made from the money in the treasury. On the eighteenth day of April, 1894, Feder died. At that time he was a member of the association in good standing, and this action is brought on the certificate, to recover the sum of five thousand dollars. The validity of the certificate is admitted, the death of Feder is not disputed, and notice and proofs of his death are shown. We are required to determine whether there was sufficient evidence tending to show that Feder's death re

sulted "from an accidental cause" to require the submission of the case to the jury.

The evidence tended to establish the following: The decedent, at the time of his death, was about twenty-six years of age, and had been in Denver, where his death occurred, about nine months. He was suffering from consumption, and wer t to Denver and resided there, on account of his health. He was benefited by the change of climate and medical treatment he received, and his health had been considerably improved, and was constantly improving, at the time of his death. During the day of his death he had been as well as usual, and in the evening was with two of his brothers in their office. Preparatory to leaving it, the decedent went to a window to close the shutters. A chair stood in front of the window, and he stood on his toes, and reached over the chair toward the shutters, and, as he did so, blood began to flow from his mouth. He was placed on a lounge, and died within a few minutes. The cause of his death was hemorrhage from a ruptured artery, and the evidence would have authorized the conclusion that the rupture 540 of the artery was not due to the disease from which he was suffering. There is no evidence that he fell, slipped, lost his balance, failed to catch the shutter when he reached for it, or that it moved at his touch more or less readily than he had expected it would move; in other words, there is no evidence whatever that anything was done or occurred which he had not foreseen and planned, excepting the rupture of the artery, and the consequences which resulted from it.

Did his death result "from an accidental cause"? Various definitions of the word "accident" are quoted by the appellants, and among them are the following: It is an "unexpected event, which happens as by chance, or which does not take place according to the usual course of things": North American etc. Ins. Co. v. Burroughs, 69 Pa. St. 43, 8 Am. Rep. 212. "The equitable definition of the term 'accident' includes, not only inevitable casualties, and such as are caused by the act of God, but also those which arise from unforeseen occurrences, misfortunes, losses, and acts or omissions of other persons, without fault, negligence, or misconduct on the part of the person injured": Bostwick v. Stiles, 35 Conn. 198. "An event which takes place without one's foresight or expectation"; and it may include an injury received in a common-law affray, without the fault of the person injured: Supreme Council etc. v. Garrigus, 104 Ind.

133, 54 Am. Rep. 298. "An event that takes place without one's foresight or expectation; an event which proceeds from an unknown cause, or is an unusual effect of a known cause, and, therefore, not expected"; Schneider v. Provident etc. Ins. Co., 24 Wis. 30, 1 Am. Rep. 157. "An accident is the happening of an event without the aid and the design of the person, and which is unforeseen": Paul v. Travelers' Ins. Co., 112 N. Y. 472, 8 Am. St. Rep. 758. "An event that takes place without one's foresight or expectation; an undesigned, sudden, and unexpected event": Webster's International Dictionary. See, also, Fidelity etc. Co. v. Johnson, 72 Miss. 333; Carnes v. Iowa etc. Ass., 106 Iowa, 281, 68 Am. St. Rep. 306. The ordinary 541 and popular meaning of the word "accidental" is said to be "happening by chance; unexpectedly taking place; not according to the usual course of things; or not as expected": United States etc. Assn. v. Barry, 131 U. S. 100.

It is argued that the rupture of a blood vessel is not the usual result of an effort to close shutters; therefore, when it occurs, it is unusual, unexpected, and an accident. While it may be true that an accident is an event which takes place without one's foresight or expectation, and is undesigned, it is not true that every unforeseen, undesigned, and unexpected event is an "accident," within the ordinary and popular meaning of that term. Thus, a person might voluntarily and knowingly expose himself to a contagious disease, or to excessive heat or cold, or to sudden changes of temperature, or might adopt a strange diet or mode of living; but, if death resulted, it would not be due to an accidental cause, although wholly undesigned, unforeseen, and unexpected. So, if a person suffering from some weakness or disease, should subject himself to conditions which would not injuriously affect persons in ordinary health, but would be dangerous to him, and injury result, it would not be due to an accidental cause. For example, if a person having a diseased heart should take violent exercise voluntarily, and death should result, the cause would not be accidental: Southard v. Railway etc. Assur. Co., 34 Conn. 574. See, also, Bacon v. United States etc. Assn., 123 N. Y. 304, 20 Am. St. Rep. 748; Sinclair v. Assurance Co., 3 El. & E. 478. Although a result may not be designed, foreseen, or expected, yet, if it be the natural and direct effect of acts voluntarily done, or of conditions voluntarily assumed, it cannot be said to be accidental.

We do not think the cases relied upon by the appellant hold a contrary rule. In Hamlyn v. Insurance Co., 1 Q. B. Div. 750, it appears that a person sustained an injury to his knee in attempting to catch a rolling marble; but it was found that the injury resulted from an unnatural position or movement of the leg, which was not intended by the person 542 injured. The injury considered in North American etc. Ins. Co. v. Burroughs, 69 Pa. St. 43, 8 Am. Rep. 212, was caused by the unintended slipping of a pitchfork in the hands of the person injured in such a manner that it struck him in the bowels, and caused the injury. The case of Burkhard v. Travellers' Ins. Co., 102 Pa. St. 262, 48 Am. Rep. 205, involved the act of a person injured in stepping into a hole in a bridge, of which he had no knowledge. And in the case of Schneider v. Provident etc. Ins. Co., 24 Wis. 28, 1 Am. Rep. 157, it appears that the person insured, in attempting to get upon a moving train, fell under the cars and was killed; but it was not claimed that his fall was the result of his doing what he intended to do.

The certificate in suit made the defendant liable if the death of Feder resulted from an accidental cause. The evidence shows that the cause was the ruptured artery; but that was not accidental, if it was the natural result of an act voluntarily done by Feder. That he did anything but what he intended to do, in attempting to close the shutters, is not shown nor claimed. It is not even shown that he made any unusual exertion in what he did. Had the artery been ruptured while the decedent was sitting quietly in his chair, or while walking at a moderate pace, there would be no ground for claiming that the rupture was accidental; and we do not think that, because the act of closing the shutters may have required a little more exertion than would have been required to remain seated or to walk leisurely, the rupture was accidental. So far as is shown, it may have been, and probably was, due to a weakened or diseased condition of the artery. But, however that was, we are satisfied that there was no evidence which would have authorized the jury to find that the rupture was accidental, within the meaning of the certificate. We conclude that the district court was right in directing a verdict for the defendant, and the judgment rendered is therefore affirmed.

INSURANCE-ACCIDENT-WHAT IS.-An accident, within the meaning of insurance against death from an accidental cause, is an event happening without any human agency, or, if happening

through human agency, an event which, under the circumstances, is unusual, and not expected, to the person to whom it happens: Carnes v. Iowa etc. Assn., 106 Iowa, 281, 68 Am. St. Rep. 306; Meyer v. Fidelity etc. Co., 96 Iowa, 378, 59 Am. St. Rep. 374. Death by "accident" means death from any unexpected event which proceeds from an unknown and unforeseen cause, happening without the design of the person acted upon: Lovelace v. Travelers' Protective Assn., 126 Mo. 104, 47 Am. St. Rep. 638. See the extended note to Paul v. Travelers' Ins. Co., 8 Am. St. Rep. 763, on what is death by accidental means.

FIRST NATIONAL BANK v. GERMAN BANK.

[107 IOWA, 543.]

BANKS AND BANKING-SELECTION OF NOTARY-LIABILITY FOR HIS NEGLIGENCE.-A bank to which a draft is sent by another bank for collection is not liable to the latter for the negligence of a notary public prudently selected by the former to protest the draft for nonpayment, which negligence consisted in the failure of the notary to ascertain the residence of the person who indorsed the draft to the sendor bank, or to notify him of the dishonor of the draft. This rule is not changed by the fact that the notary was also assistant cashier of the collecting bank.

BANKS AND BANKING-COLLECTIONS-NEGLIGENCE OF NOTARY.--Where one bank makes another bank its agent for the collection of a draft, it impliedly authorizes it to employ a notary, if necessary, to protest the draft, and if, through the notary's negligence, collection of the draft is prevented, in the absence of reasonable prudence on the part of the collecting bank in the selection of a notary, such collecting bank is not liable for the notary's negligence, but the sendor bank must seek its remedy against the notary.

BANKS AND BANKING – SELECTION OF NOTARY— POWERS OF NOTARIES.-In Iowa, giving notice to indorsers of a protested instrument is made a part of the official duty of the notary making the protest, and a collecting bank acts prudently in intrusting to a notary the giving of such notice.

The plaintiff purchased of Farneman a draft, which, coming into defendant's hands for collection, was properly presented for payment, which was refused. The draft was at once placed in the hands of a notary for protest, and through his failure to properly notify Farneman, the plaintiff was denied a recovery against Farneman on the draft: See Bank v. Farneman, 93 Iowa, 163. This action is for the amount of the draft and the expenses and costs of that case. Appeal from judgment for defendant.

F. M. Powers, for the appellant.

M. W. Beach, for the appellee.