a jury, whose verdict was, that they found the issue in favor of the plaintiff, and assessed the damages to her at the sum of $5,779.70; and a judgment was entered for her for that amount, and $189.35 costs, being a total of $5,969.05. To review this judgment the defendant has brought a writ of error. At the trial the plaintiff offered in evidence the policy or certificate, to which offer the defendant objected, for the reason that the complaint did not state facts sufficient to constitute a cause of action. The objection was overruled and the defendant excepted. The defendant objected also that the complaint alleged no assessment, and the court received the evidence subject to the objection. The plaintiff then proved, without objection, by the secretary of the defendant, that on the 23d of June, 1882, there were 804 members in division AA in the association, and on the same day in 1883, 4,803 members, and on the same day in 1884, 5,626 members; that during June and July, 1883, the defendant, in case of a death in division AA, could have levied a two-dollar as sessment on at least 4,803 members, that number being then insured in that division; that the only members who were exempt from the two dollar death assessment were those who became members subsequent to the death for which the assessment was made; that, if the defendant had desired to pay the loss occasioned by the death of Barry the amount to be paid would have been $5,000; that the assess[103] ment levied next prior to June 29th, 1883, was levied June 1, 1883; that if, at the time a death was reported, and a claim was proved, there were sufficient funds to the credit of division AA, the loss was paid from those funds, without making a specific assessment; that, if there were not sufficient funds at that time, an assessment was made; and that, on June 29th, 1883, the defendant had on hand, belonging to class AA, $2,060.15. The witness hen produced the by-laws of the defendant or 1882'83, the material parts of which are set forth in the margin. In the proofs of death furnished to the defendant was the following, in the evidence of the attending physician: "12th. What was the precise nature of the injury and its extent ? Inflammation of the duodenum, from jarring (jump)." years of age at the time of his death. He was, at the time of the injury, strong and robust, weighing from 160 to 175 pounds, about six feet high, and in good health. With two other physicians, Dr. Crowell and Dr. Hirschmann, he visited a patient, on June 20th, 1883, who lived in a house behind a drug store. On coming out of the house they were on a platform which was between four and five feet from the ground, and if they got off from the platform it was but a short distance to the back part of the drug store, where they desired to go. The other two jumped from the platform first, and [104] alighted all right. Dr. Hirschmann testifies: "Just after we had jumped Dr. Barry jumped, and he came down so heavy that it attracted our attention, and we both turned around, and we both remarked that it was a heavy jump, and I asked him, 'Doctor, are you hurt?' and he said, 'No; not much.' I have an indistinct recollection of his leaning against the platform when he jumped, but not sufficiently to state positively. If I were to jump I would jump and strike on my toes, and if I had any distance to jump would allow my knees to give. The way Dr. Barry came down it sounded to us as if he came down solid on his heels, so much so that we both turned around and remarked, Doctor, you came down heavily.' And I asked him, 'Are you hurt?' and he said, 'No; not much.' I heard the noise. It was a singu lar jump and sounded like an inert body. We then went with him to the drug store." Hirschmann drove home with him. He appeared ill on the way, and when he arrived home was distressed in his stomach, and vomited, and from that time on retained nothing on his stomach, and passed nothing but decomposed blood and mucus, and died nine days afterwards. There was much conflicting testimony as to the cause of death, and as to whether it resulted from duodenitis or a stricture of the duodenum, as alleged in the complaint, and from an injury caused by the jump. The issues presented to the jury sufficiently appear from the charge of the court. At the close of the evidence on both sides, all of which is set forth in the bill of exceptions, the defendant moved the court to direct a verdict for it, on the ground that there was no evidence to sustain a cause of action. The motion was denied and the defendant excepted. The plaintiff's husband was a physician 30 The plaintiff then, by leave of the court, amended her complaint by alleging that, at the 1 Art. 1, sec. 3. The object of this association is time of Doctor Barry's death, and from that to collect and accumulate a fund to be held and used for the mutual benefit and protection of its time, and for the balance of the year 1883, and members (or their beneficiaries), who shall have sus- including the time, as provided for in the poltained while members of the association bodily in- icy, in which the said insurance was to be paid juries, whether fatal or disabling, effected through to the plaintiff herein, there were insured by it external, violent, and accidental means. Art. 7, sec. 1. Upon sufficient proof that a mem-in class AA, the same class in which said Docber of one of the divisions of this association shall tor Barry was at the time insured, 4,803 memhave sustained bodily injuries effected through ex-bers or persons upon whom the defendant [105] ternal, violent, and accidental means within the intent and meaning of these by-laws and the con- could have levied an assessment, under its byditions named in the certificate of membership, and such injuries alone shall have occasioned death within ninety days from the happening thereof, the board of directors shall immediately order an assessment of two dollars upon each person who was a member of the division to which deceased belonged at the time of such death, and shall pay the amount so collected, according to the following schedule of classification... to the person or per sons whose name shall, at the time of the death of such member, be found recorded as his last desig nated beneficiaries, if surviving. To members of division AA not exceeding $5,000, laws and rules, of the two dollars per head, making an amount exceeding the plaintiff's claim of $5,000. This amendment was objected to, but the defendant took no exceptions. The defendant then demanded that the court submit a special verdict in the case, as provided by the rules of practice in the State of Wisconsin, and, as a question upon such special verdict, requested the court to submit the following question: "Whether the death of Docter Barry was caused by duodenitis." The de | be for the defendant, if they found that the al- leged injury was not sustained by Doctor Bar- The court refused to give these instructions "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 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 agreed to levy an assessment of two dollars upon each member of said class, and to pay the same to the plaintiff if said John S. Barry should die of bodily injuries, effected through external, violent, and accidental means, but in no event to pay more than $5,000. Before the plaintiff can recover in this case she must show that the defendant, when it received the proof 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 "The issue between the parties may be on July 15th or at any later date; nor is there briefly stated: It is claimed by the plaintiff [106] any other evidence in the case which would that on the occasion mentioned by Dr. Hirschshow that fact or that any assessment was mann, when the deceased was at Iron Mounlevied. Therefore the plaintiff cannot recover tain, he sustained an injury by jumping from in this action, and you are instructed to return a platform to the ground; that this injury was a verdict for the defendant." The court re-effected by such means as are mentioned in the fused to give this instruction and the defend- certificate; that the deceased, at the time of the ant excepted. alleged accident, was in sound physical condi The 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 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 difficulty attending its proper investigation, great "First. Did Dr. Barry sustain internal inweight should be given by the jury to the opin- jury by his jump from the platform on the ocion of scientific witnesses accustomed to inves-casion testified to by Dr. Hirschmann? tigate 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 investiga tion. 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 death. 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: "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? "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. [107] [108] [109] ["The first question (viz., Was the deceased, Dr. Barry, injured by jumping from the platform?) is so entirely a question of fact, to be determined upon the testimony, that the court must submit it without discussion to your determination. In passing upon the question, you will consider all the circumstances of the occurrence as laid before you in the testimony; the apparent previous physical condition of Dr. Barry; the subsequent occurrences and circumstances tending to show the change in his condition; the relation in time which the first developments of any trouble bore to the time when he jumped from the platform; the nature of his last sickness; and the symptons disclosed in its progress and termination.] "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? the platform with his eyes open, for his own convenience, in the free exercise of his choice, and not from any perilous necessity. He encountered no obstacle in jumping, and he alighted on the ground in an erect posture. So far we proceed without difficulty; but you must go further and inquire, and here is the precise point on which the question turns: Was there or not any unexpected or unforeseen or invol. untary movement of the body, from the time Dr. Barry left the platform until he reached the ground, or in the act of alighting? Did he or not alight on the ground just as he intended to do? Did he accomplish just what he intended to, in the way he intended to? Did he or not unexpectedly lose or relax his self control, in his downward movement? Did his feet strike the ground as he intended or expected, [110] 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.] "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 unfore seen 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 in. jury, 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 [111] [112] "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 ex- and that no physical injury is shown to have "Now, between these conflicting claims, "The next question is, If Dr. Barry was in- bare possibility for positive evidence of facts "There has been considerable testimony given 65 [113] [114] cause of Dr. Barry's death. Who has had the "All this is to be taken into consideration by "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 [115] 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. It is contended, for the defendant, that the (2.) It is also urged as error that 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, § 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 |