#### John T. Gallagher, Respondent, *v.*Fidelity and Casualty Company of New York, Appellant.

Second Department,

July 31, 1914.

Insurance — accident insurance — action for injury from alleged “ sunstroke ” suffered “ through accidental means.”

Where, in an action under a policy of accident insurance, insuring 1 ‘Against bodily injury * * * through accidental means * * * and resulting directly, independently and exclusively of ah other causes ” in total disability, partial disability or death, and defining as a bodily injury sunstroke suffered through accidental means, it appears that the plaintiff after being exposed to the sun’s rays in the necessary conduct of his business for an unusual number of hours on an exceedingly hot day suffered a physical experience which the jury found upon sufficient evidence was a “ sunstroke,” a judgment in favor of the plaintiff should be affirmed.

*It seems,*that the sunstroke experienced by the plaintiff was suffered “through accidental means” within the meaning of the policy.

Appeal by the defendant, Fidelity and Casualty Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of May, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the *55716th day of May, 1913, denying the defendant’s motion for a new trial made upon the minutes.

*Edwin A. Jones,*for the appellant.

*James F. Lynch,*for the respondent.

Burr, J.:

On February 1, .1910, defendant issued and delivered to plaintiff its policy of accident insurance. By the payment of annual premiums subsequently accruing the policy was in full force on July 11, 1911. Upon that date, which was an exceedingly hot day, after being exposed to the sun’s rays in the necessary conduct of his business, for an unusual number of hours, plaintiff suffered a physical experience which the jury have found, upon sufficient evidence, was. a “ sunstroke.” The policy in question insured the person named therein “Against bodily injury * "x" * through accidental means (excluding suicide, sane or insane, or any attempt thereat, sane or insane), and resulting directly, independently and exclusively of all other causes ” in total disability, partial disability or death. Among the “ general provisions ” of the policy is one to the effect that the term “bodily injury ” is defined in the insuring clause, and as so defined shall be understood wherever used in the policy. Turning to the insuring clause we find, among others, “ Article 6. Any one of the following, namely — sunstroke, freezing, hydrophobia, asphyxiation — suffered through accidental means (excluding suicide, sane or insane, or any attempt thereat, sane or insane), shall be deemed a bodily injury within the meaning of this policy.” Appellant contends that the sunstroke experienced by plaintiff was not suffered “ through accidental means; ” that an injury occurring as the direct result of intentional acts is not thus produced, and that as plaintiff had intended to -do all of the things which he did upon the day in question prior to the occasion thereof, this sunstroke, although as a result it may have been wholly unexpected, followed intentional rather than accidental means. To quote from his brief, the phrase in question “ means that the policy being an accident policy, the defendant will pay indemnity for death or disability by sunstroke only when the means or causes leading *558to such sunstroke are such as makes the sunstroke itself the result of preceding accidental means.” If this policy had insured only against bodily injury sustained through accidental means, with no definition or qualification, there might be greater strength in such contention. *(Southard*v. *Railway Passengers Assurance Co.,*34 Conn. 574; *Appel*v. *Ætna Life Ins. Co.,*86 App. Div. 83; *Schmid*v. *Indiana Travelers’ Accident Assn.,*42 Ind. App. 483; 85 N. E. Rep. 1032; *Feder*v. *Iowa State Traveling Men’s Assn.,*107 Iowa, 538; *Sinclair*v. *Maritime Passengers’ Insurance Co.,*3 El. & El. 478.) But even then it might be a question for the jury, considering sunstroke as an accident rather than a disease, whether under the circumstances here disclosed such sunstroke was not occasioned by “accidental means.” While plaintiff may have voluntarily exposed himself to the sun’s rays, all of the evidence would justify a finding that the result of such exposure was neither natural in the sense that it was usual, or a result similar to that which followed like exposure on previous occasions, nor was it foreseen nor desired. An accident is “an event which takes place *without one’s foresight or expectation,*and which proceeds' from an unknown cause or *an unusual effect of a known cause*not within the expectation of the person injured.” (Richards Ins. Law [3d ed.J, § 385.) “ Accidental means are those which produce effects which are not their natural and probable consequences.” (4 Cooley Ins. 3156.) • Means as here used is synonymous with cause, and appearing in a policy of insurance in connection with the adjective “ accidental ” is used “ 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: ’ * * * 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 * * "x" 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.” *(Mutual Accident Assn.*v. *Barry,*131 U. S. 100, 121.) Technically, sunstroke is rather a disease than an accident. As was said by Cockbubr, Oh. J., sunstroke is “an inflammatory dis*559ease of the brain, brought on by exposure to the too intense heat of the sun’s rays.” *(Sinclair*y. *Maritime Passengers’ Insurance Co., supra.)*Sunstroke is a term “applied to the effects produced upon the central nervous system, and through it upon other organs of the body, by exposure to the sun or to overheated air.” (Encyclopedia Britannica [11th ed.], title “Sunstroke.”) The evidence in this case also warrants the finding that this inflammatory condition of the brain may result from exposure to artificial heat as well as from the direct rays of the sun. The antithesis of “accidental” is “intentional.” It may be that plaintiff intentionally exposed himself. to the sun, but that he intended thereby to produce this “ inflammatory condition of the brain ” is without any evidence to support it. The result was not “ according to the usual course of things.” It did not follow as a “usual effect of a known cause.” It was not the “natural and probable consequence” thereof, any more than was the injury considered in *Mutual Accident Assn.*v. *Barry (supra),*or in *American Accident Co.*v. *Carson*(99 Ky. 441), or'in *Button*v. *American Mutual Accident Assn.*(92 Wis. 83). In the *Barry*case decedent intended to jump from the platform on which he was walking to the ground. He did not intend to alight with so much violence as to produce his death. In the *Carson*case and in the *Button*case the insured apparently intended to engage in the acts during the performance of which he was shot and killed by a third person, but because this was a result unexpected by him, it was held that death was occasioned by “ accidental means.”

In the policy now under consideration, however, in its defining clause, sunstroke is included within the definition of “bodily injury,” and because this is an accident as distinguished from a life policy, it might be urged with considerable force that every sunstroke is within the meaning of the policy an accidental bodily injury. While it may be conceded that sunstroke, freezing and hydrophobia are diseases rather than accidents, the popular idea is not so, and as a concession to this view, to save all question as to liability therefor, these, together with asphyxiation, are specifically named as conditions as to which the policy holds good. *(Herdic*v. *Maryland*
      *560
      *Casualty Co.,*146 Fed. Rep. 396; affd., 149 id. 198.) “Accident insurance companies do business mostly with the common people, and the term ‘ accident ’ as used in these policies should be construed most strongly against the companies, and be defined according to the ordinary and usual understanding of its signification.” *(Young*v. *Railway Mail Assn.,*126 Mo. App. 325.) The exact language of the clause in question is above quoted. The language taken in its entirety is inapt. If both of the qualifying clauses relate not only to asphyxiation, which they immediately follow, but to sunstroke, freezing and hydrophobia as well, it is not easy to contemplate hydrophobia as being a method adopted by a would-be suicide. One might, it is true, expose himself to a dog bite, but that is not the language of the policy, and if he did so it by no means follows that hydrophobia would result therefrom. The punctuation would limit the qualifying clause, “suffered through accidental means” to asphyxiation only, and so limited we can conceive of a person suffering asphyxiation intentionally or accidentally. We can think also of a person exposing himself to great heat or to extreme cold, but that he deliberately intended thereby in the one case to bring about the disease known as sunstroke, and in the other case the physical condition known as freezing, it is not easy to conclude. If there must be a “preceding accident,” and in consequence thereof subsequent exposure to the sun’s rays or excessive heat, followed by the disease known as sunstroke, to come within the terms of this policy, then the clause in question would add little or nothing to the previous binding force of the policy, for the reason that the indemnity would be not for the sunstroke independently considered, but for the accident which preceded it, and for everything resulting therefrom, including such sunstroke. If the language is vague and indefinite it must be construed most strongly against the insurer. *(Schumacher*v. *Great Eastern C. & I. Co.,*197 N. Y. 58; *Paul*v. *Travelers' Ins. Co.,*112 id. 472.)

We think, therefore, that upon the evidence in this case the learned trial court would have been justified in leaving to the jury as the only question of fact in the case the question whether plaintiff did suffer a sunstroke. The fact that it was *561also left to the jury to say whether he suffered a sunstroke *“*within the meaning of this article 6 of the policy,” which had just been read in their hearing, in view of their verdict presents no ground of error. In this view of the case the exceptions taken to the charge require no consideration.

The judgment and order should be affirmed, with costs.

Jenks, P. J., Rich, Stapleton and Putnam, JJ., concurred.

Judgment and order affirmed, with costs.