Opinion
No. 7,735.
Submitted November 18, 1937.
Decided December 11, 1937.
Life Insurance — Recovery of Double Indemnity for Death Caused by Accidental Means — Death of City Fireman from Pulmonary Edema Caused by Smoke — Recovery Sustained by Evidence — Liberal Construction of Policy in Favor of Beneficiary — Circumstantial Evidence Sufficient to Prove any Issue of Fact — Burden of Proof. Life Insurance — Double Indemnity if Death Caused by Accidental Means — Burden of Proof on Beneficiary to Show What. 1. To recover on a life insurance policy providing for double indemnity in case death results from bodily injury caused directly, exclusively and independently of all other causes by external, violent and purely accidental means, the beneficiary has the burden of showing that death resulted from accidental means, i.e., from something unforeseen or unusual which produced the injury. Same — Liberal Construction of Policy in Favor of Insured and Strictly Against Insurer. 2. A policy of life insurance must be liberally construed in favor of the insured and strictly against the insurer. Appeal and Error — Presumption That Judgment Appealed from Correct — Burden of Showing Error on Appellant. 3. On appeal the supreme court indulges the presumption that the judgment of the district court appealed from is correct and will uphold it unless clearly shown to be erroneous, the burden of showing which rests upon the appellant. Same — Finding of Court Tried Without Jury Conclusive on Appeal Where Evidence Furnishes Reasonable Grounds for Different Conclusions. 4. The finding of the trial court in a cause (on a policy of life insurance) in which the parties waived jury trial, will not be disturbed on appeal if the evidence, fully considered, furnished reasonable grounds for different conclusions. Trial — Evidence — Any Issue Provable by Circumstantial Evidence. 5. The solution of any issue of fact may rest in whole or in part upon circumstantial evidence. Life Insurance — Death by Accidental Means — Definition of "Accident" and "Accidental." 6. The words "accident" and "accidental" as used in a policy insuring against death by accident (see par. 1, above) have no technical or legal meaning, but must be considered in the light of their common and accepted meaning and construed according to common speech and usage, viz.: something unforeseen, unusual, without design, intention or premeditation. Same — Death of City Fireman from Pulmonary Edema Caused by Smoke Held "Accidental." 7. Evidence in an action to recover on a life insurance policy providing for double indemnity for accidental death, showing that deceased, a strong and healthy young man and a member of a city fire department, while assisting in fighting a fire in a barn located without the city limits in which a large quantity of hay and some livestock were destroyed causing at times unbearable smoke and stench, was overcome thereby while shifting the position of the fire hose and died from pulmonary edema a few hours later, held sufficient to warrant the finding of the trial judge, who tried the cause without a jury, that death resulted from accident within the meaning of the policy referred to in paragraph 1, supra.
Appeal from District Court, Fergus County, in the Tenth Judicial District; William L. Ford, Judge of the Fourteenth District Presiding.
Mr. J.A. Poore, for Appellant, submitted a brief, and argued the cause orally.
The double indemnity provision in the instant policy for death from accident reads as follows: "Death from accident means death resulting solely from bodily injuries caused directly, exclusively and independently of all other causes by external, violent and purely accidental means." If the evidence shows death by accidental means within the meaning of the terms of the policy, the judgment should be sustained, — otherwise not.
The courts generally recognize a distinction between death arising from accidental means, and accidental death. (See Rock v. Travelers' Ins. Co., 172 Cal. 462, 156 P. 1029, L.R.A. 1916E, 1196; Shanberg v. Fidelity Cas. Co., 158 Fed. 1, 85 C.C.A. 343, 19 L.R.A. (n.s.) 1206; Landress v. Phoenix Mut. Life Ins. Co., 291 U.S. 491, 54 Sup. Ct. 461, 78 L.Ed. 934, 90 A.L.R. 1382; United States Mutual Acc. Assn. v. Barry, 131 U.S. 100, 9 Sup. Ct. 755, 33 L.Ed. 60; Pledger v. Business Men's Acc. Assn. of Texas, (Tex.Civ.App.) 197 S.W. 889; Olinsky v. Railway Mail Assn., 182 Cal. 669, 189 P. 835, 14 A.L.R. 784; Ogilvie v. Aetna Life Ins. Co., 189 Cal. 406, 209 P. 26, 26 A.L.R. 116; Muzzy v. Supreme Lodge, 129 Cal.App. 1, 18 P.2d 107; Losleben v. California State Life Ins. Co., 133 Cal.App. 550, 24 P.2d 825; Tuttle v. Pacific Mut. Life Ins. Co., 58 Mont. 121, 138, 190 P. 993, 16 A.L.R. 601; Ferris v. City of Eastport, 123 Me. 193, 122 A. 410; Sentinel Life Ins. Co. v. Blackmer, 77 F.2d 347; Aetna Life Ins. Co. v. Brand, (C.C.A.2d 265 Fed. 6, 13 A.L.R. 657; Lincoln Nat. Life Ins. Co. v. Erickson, (C.C. A 8th) 42 Fed. 2d 997, 1000; Mutual Life Ins. Co. v. Dodge, (C.C.A. 4th) 11 F.2d 486, 488; Pope v. Prudential Ins. Co. of America, (C.C.A. 6th) 29 F.2d 185; Maryland Casualty Co. v. Massey, 38 F.2d 724; Hastings v. Travelers' Ins. Co., 190 Fed. 258; Northam v. Metropolitan Life Ins. Co., 231 Ala. 105, 163 So. 635.)
Voluntary over-exertion or strain bringing on fatal results is not a death by accidental means. ( Carswell v. Railway Mail Assn., (C.C.A. 5th) 8 F.2d 612; Baldwin v. North American Acc. Ins. Co., 22 F.2d 111; Landress v. Phoenix Mutual Life Ins. Co., supra; Anderson v. Travelers Protective Assn., 74 F.2d 170; Olinsky v. Railway Mail Assn., 182 Cal. 669, 189 P. 835, 836, 14 A.L.R. 784.) An injury or death by accidental means, is the result arising from the injured person's act unintentionally done. ( National Life Acc. Ins. Co. v. Jones, 260 Ky. 404, 86 S.W.2d 139, 141.) It is not sufficient that the injury be unusual and unexpected, but the cause itself must have been unexpected and accidental. ( Stone v. Fidelity Cas. Co., 133 Tenn. 672, 182 S.W. 252, Ann. Cas. 1917A, 86 L.R.A. 1916D, 536; Northam v. Metropolitan Life Ins. Co., supra; Parker v. Provident Life Acc. Ins. Co., 178 La. 977, 152 So. 583; Metropolitan Life Ins. Co. v. Landsman, 5 W.W. Harr. (35 Del.) 384, 165 A. 563.)
Where death, though unexpected, flows directly from insured's ordinary voluntary act, it is not the result of accidental means. ( Mehaffey v. Provident Life Acc. Ins. Co., 205 N.C. 701, 172 S.E. 331.) Where insured's going about business affairs exposed him to excessive heat and he died, injury was not effected through accidental cause. The court said: "High temperature was not an accident any more than excessive cold or an extraordinary storm." ( Nickman v. New York Life Ins. Co., 39 F.2d 763; certiorari denied, 282 U.S. 855, 51 Sup. Ct. 31, 75 L.Ed. 757.) In the case of Whitehead v. Railway Mail Assn., 269 Fed. 25, the insured's death resulted from his voluntary act in getting off a moving train, and it was held his death was not due to accidental means. (Certiorari denied, 255 U.S. 570, 41 Sup. Ct. 375, 65 L.Ed. 791.) Acute dilation of the heart from voluntary exertion is not an injury as a result of "accidental means." ( Carswell v. Railway Mail Assn., supra.) "Accidental death is an unintended and undesigned result arising from acts done. Death by accidental means is where the result arises from acts unintentionally done," that is, accidentally done. ( Pledger v. Business Men's Acc. Assn., supra.) The burden was upon plaintiff to prove death by "external, violent and accidental means." ( Nichols v. New York Life Ins. Co., 88 Mont. 132, 139, 292 P. 253; Tuttle v. Pacific Mut. Life Ins. Co., supra; Travelers' Ins. Co. v. Wilkes, 76 F.2d 701; United States F. G. Co. v. Blum, (C.C.A. 9th) 270 Fed. 946, 952.)
There was no evidence of death by accidental means. Dalbey did what he intended to do, and in the manner by him intended. No accident happened in the performance of his work. He voluntarily went into the smoke, heat and gas; he knew he could not do so without breathing it. Because of this difficulty, he came out for air, and then went back again, repeating this performance until he was finally overcome and died. Of course, he did not intend that his efforts should cost him his life, and in this sense his death was unexpected, but the means employed by him which resulted in his death were not accidental, and he therefore did not die as a result of "accidental means." Mr. Oscar O. Mueller, for Respondent, submitted a brief, and argued the cause orally.
The appellant cites numerous cases intended to support certain definitions and statements of law in its favor but on investigation of the facts of the particular cases to which these statements of law were applied, it appears that they are generally marginal or twilight zone accident cases, and decisions made by findings of the court or of the jury based on those facts or circumstances and presumptions. The cases can be classified as covering those cases in which the facts show a particular weakness or disease of the deceased or injured person, together with a voluntary excessive strain as the cause of the breakdown or accident and where there were no circumstances or facts particularly present to support a finding of accident. Even in this line of cases based upon particular facts of no known cause, the overwhelming majority of the decisions holds, as is very clearly set forth in the case of Losleben v. California State Life Ins. Co., 133 Cal.App. 550, 24 P.2d 825, which found in favor of the insured, and stated the distinction between "accidental means" and "accidental results," as follows: "While this distinction is somewhat technical, it has some reasonable basis in cases where the result is to be naturally expected or foreseen from the act done, or where, from existing disease or otherwise, the strain of an intended act is too great for a particular individual." The distinction between "accidental means" and "accidental results" has no bearing whatsoever under the facts of this particular case. The defendant admits that it was an accident and the facts conclusively prove the means that caused the accident, to-wit, heat, smoke and gases. Here there were preliminary extraordinary accidental conditions which the deceased could not foresee, to-wit: The necessity of laying the hose by hand, leaving the deceased winded and thus more likely to inhale the gases and smoke, together with the extraordinary explosive character of the material in the barn confined within sheet-iron sides, etc., that baffled even the most experienced firemen. In plain, ordinary, common-sense terms, it is just another accident that we humans cannot foresee or anticipate. In 1 C.J., section 44, page 417, it is stated: "The terms used in an accident insurance policy should be understood in their plain, ordinary and popular sense, rather than any philosophical or scientific sense." It certainly is not a plain, ordinary popular understanding of the term "accidental means" to deny recovery where the facts, as in this case, show a strong, healthy young man struck down in the performance of his duty. No person in the ordinary walks of life would give the term that meaning. ( Richards v. Standard Acc. Ins. Co., 58 Utah, 622, 200 P. 1017, 17 A.L.R. 1183; Continental Cas. Co. v. Bruden, 178 Ark. 683, 11 S.W.2d 493, 61 A.L.R. 1192.) A brief holding death by drowning of a bather as "external, violent and accidental means" is found in 56 A.L.R. 1091. An extensive brief is found on the question of death from involuntary inhaling of gas and fumes as an accidental means, in 11 A.L.R. 389, and also in 92 A.L.R., page 164. The recent Colorado case of Equitable Life Assur. Soc. of the United States v. Hemenover, 100 Colo. 231, 67 P.2d, page 80, 110 A.L.R. 1270, is an identical case in point. (See, also, 1 C.J. 427; 35 A.L.R. 730, 1177, 1191.)
The question as to what are accidents or accidental means has been passed on directly by this court. While these are compensation cases, yet they are directly in point so far as defining the words "accident" or "accidental means." Nicholson v. Roundup Coal Min. Co., 79 Mont. 358, 257 P. 270, quotes many authorities on the question of what is an accident, holding heat prostration and similar events accidents. In this particular case the court held that death due to an artificial cold air was an accident. In Nichols v. New York Life Ins. Co., 88 Mont. 132, 292 P. 253, the court held: "Death resulting from the taking of poison by mistake is from external, violent and accidental means." In Ryan v. Industrial Acc. Board, 100 Mont. 143, 45 P.2d 775, 778, it was held that death from heat, exhaustion or sunstroke was an accident.
This is an action on an insurance policy issued by the defendant company, respondent here. By the terms of the policy plaintiff, mother of George K. Dalbey, deceased, was named beneficiary to receive $2,000 in case of the death of the insured, with the beneficial amount to be increased to $4,000 on receipt of proof of death from accident, in accordance with the following definition contained in the policy: "Death from accident means death resulting solely from bodily injuries caused directly, exclusively and independently of all other causes by external, violent and purely accidental means." The paragraph then provided for the noninclusion of certain designated risks, but did not provide for the exclusion of a fireman from the protection of the policy. Deceased, a fireman, was therefore covered and protected by the policy in accordance with the terms thereof.
The cause was tried to the court, a jury having been expressly waived. The primary liability on the policy, $2,000, was paid upon proof of death furnished, leaving for controversy only the matter of the additional $2,000, which was payable only in the event of accidental death. The court found that deceased had died as a result of accidental means resulting solely from bodily injuries caused directly, exclusively, and independently of all other causes, by external violence and purely accidental means as stipulated in the policy, and concluded, as a matter of law, that the plaintiff was entitled to a judgment for the additional $2,000. The appeal is from that judgment.
The sole question presented by the assignments of error is whether the evidence is sufficient to support the finding that the cause of insured's death was such as to bring it within the double indemnity provision of the insurance contract. Solution of the question naturally depends upon a consideration of the evidence in the light of the term "death from accident," as defined in the policy.
It is the position of defendant that the death, though accidental, was not caused directly, exclusively, and independently of all other causes, by external, violent, and purely accidental means. It also denies that any such proof of death has been furnished. Plaintiff's position is to the direct contrary.
The very nature of such a contract of accident insurance makes it necessary to consider the facts of each particular case to determine whether the death of an insured is one for which the insurance company has agreed to pay increased indemnity. The judicial variability on the question of accidental means causing the lack of uniformity in the interpretation of such policies has arisen largely from the dissimilarity of facts involved. ( Mehaffey v. Provident Life Acc. Ins. Co., 205 N.C. 701, 172 S.E. 331.)
The only evidence adduced relative to the circumstances of the death of the insured here was the testimony of two witnesses, the fire chief in charge of the department fighting the fire, and the doctor who attended deceased immediately after his collapse. Both witnesses were produced by the plaintiff. Defendant introduced no evidence. Their testimony disclosed that deceased was apparently an exceptionally strong and healthy young man; that he was a regularly paid member of the city fire department; that he died in service from acute pulmonary edema, caused by the inhalation of smoke and gas fumes. The testimony of the fire chief further disclosed that the fire was that of a large barn having a wooden interior and covered on the outside with corrugated iron; that there were about twenty tons of oat hay and a few head of livestock in the barn, which was located just outside the city limits of Lewistown and under a hill. The nearest water hydrant to the barn was approximately 300 feet away, and it was impossible to get near the barn from the hydrant with a fire truck. This fact necessitated the laying of two lines of hose by hand from the hydrant down the hill to the barn. Deceased assisted in the unreeling and laying of the hose, which work was usually done with the truck. Continuing, the fire chief testified: "It was a very unusual fire, because of the fact that it was situated right under a hill. The smoke was so intense at times we had to move our position several times in order to stay where we could throw water on the fire. There were several head of livestock burned in the barn, a horse and four head of calves, and that stench and smoke made it unbearable at times, and made it necessary to shift positions from one place to another in order to stay anywhere near the barn."
Further testifying with reference to smoke conditions and types of smoke, the witness said: "Sometimes it will be a light smoke that will hit the atmosphere and lift and drift off, and sometimes you have heavy smokes. I don't known what the technical term would be, but they hang close to the ground. That is the particular type of fire we really have trouble with trying to stay close to, and that was the particular type of fire in this case that Dalbey was fighting. The smoke was very dense and hung to the ground and the hillside. Whether it was the contour of the ground, or whether it was just the condition of that particular kind of smoke, I can't say; but I do know that particular smoke was very intense and very irritating, and as fast as men would come out of the smoke they would be coughing and doing a lot of spitting. Some smoke does not affect us that way."
It appears that deceased's asphyxiation did not manifest itself while he was actually engaged in shooting water into the blaze, but that it came about while shifting the position of the hose from the north to the south side of the barn to protect other buildings from burning. To make this change it was necessary to climb a six-foot fence. Deceased reached the top but, as he did so, he fell back unconscious. He did not recover from this and died some hours later.
The testimony of the attending physician showed that deceased died from acute pulmonary edema, which condition was brought about by the inhalation of smoke and fumes. He was asked the following question: "You heard the testimony in regard to his [deceased's] collapse when he started to get over the fence. Would that indicate the condition he was in at that time, Doctor? Answer: I don't think that has anything particular to do with it. Patients who collapse from inhalation of smoke usually collapse very quickly. They may have a few premonitory symptoms to which they may not attach very much importance. A person may inhale a small amount of monoxide gas, and the symptoms appear to be rather mild for a moment or two, and suddenly they don't recall what happened after that."
Similar indemnity provisions have been the subject of much litigation in different jurisdictions, with the result that the decisions rendered have not been entirely uniform on the subject. A case illustrating the one extreme is that of Equitable Life Assur. Soc. of United States v. Hemenover, 100 Colo. 231, 67 P.2d 80, 110 A.L.R. 1270, a case subscribing to the rule that no distinction exists between accidental results and accidental means. On the other hand, illustrating an opposite result, is the case of Mehaffey v. Provident Life Acc. Ins. Co., supra, wherein that court announced that, in the absence of a showing that poison had been taken by mistake or inadvertence, the death was not the result of accidental means within the terms of the policy.
The litigated cases on the subject have been comparatively few [1] in this jurisdiction. The only case bearing immediately on the question is that of Tuttle v. Pacific Mut. Life Ins. Co., 58 Mont. 121, 190 P. 993, 997, 16 A.L.R. 601. In that case the policy contained a similar provision with respect to accidental means. In reversing the judgment, one of the grounds for doing so was that there was no evidence to support the court's finding that death had come to the deceased by external, violent, and accidental means within the terms of the policy. The opinion gave recognition to the rule that in order to recover on such an accident policy, something more than the fact of resulting death to the insured was necessary to establish a case of death by accidental means. It subscribed to the rule that, "where, in the act which precedes an injury, something unforeseen or unusual occurs which produced the injury, the injury results through accident." (Compare, also, McAuley v. Casualty Co., 37 Mont. 256, 96 P. 131, and the same case reported in 39 Mont. 185, 102 P. 586.)
As was clearly pointed out in the Tuttle Case, supra: "The burden of proof was upon the plaintiff to show, not only the death of the insured, but also that the death was caused by injuries sustained by the insured by external, violent, and accidental means, and resulted within 90 days after the injury. In other words, the plaintiff must not only show death, but death resulting from accident within the meaning of the policy." That burden likewise devolved upon the plaintiff here, and the question for our solution is whether she has carried the burden within the terms of the policy.
It is not necessary to the solution of this question to discuss extensively the terms "external" and "violent," as qualifying the word "accidental" in the quoted portion of the policy, because counsel for defendant company has devoted his brief and argument to a consideration of the term "accidental means." Generally, on the point of death resulting from asphyxiation as constituting external and violent means, however, see 5 Couch's Cyclopedia of Insurance Law, section 1150, and 6 Cooley's Briefs on Insurance, page 5254. We do not here assume to say that the terms "gas" and "smoke" are synonymous, or even analogous, except that both seem to be the same in so far as they are considered external and violent in their nature in relation to accident insurance cases.
Resort to the evidence and a search for a similar factual situation in the authorities have brought to our attention the recent Oregon case of Stuart v. Occidental Life Ins. Co., 156 Or. 522, 68 P.2d 1037, 1042. The deceased in that case was, as here, a strong, healthy young man twenty-six years of age, and a member of the volunteer fire department of the city of Enterprise, Oregon. The evidence showed that "the insured while engaged in his duties as a fireman fighting fire, was caught by a falling ceiling so that he was enveloped in smoke, soot, and burning materials, and he was forced to inhale the smoke, soot, and flames to such an extent and in such a manner that he was internally and externally injured, and that his death was the direct result of these injuries. The testimony as to his being caught by the falling ceiling and being enveloped in smoke, soot, and burning debris was direct and positive. * * * The evidence of the doctors further shows that the death of deceased was a direct result of the injuries which he sustained at that time." All testified that the inhalation of smoke while fighting the fire brought about the death. In holding for the beneficiary in that case, the court did so on the theory that, under an accident policy containing such provision, the liability had to be determined by causes rather than consequences. The language of the court is as follows: "In the present case there can be no question that the act which preceded the injury was something unforeseen, unexpected, and unusual, which produced the injury and the injury resulted through accidental means." This pronouncement is in accord with the principles enunciated in the Tuttle Case, supra.
The question, then, is whether the facts of this case are sufficient to sustain the finding of the trial judge, the trier of the facts, who expressly found that the death occurred as a result of accidental means. Does the evidence support that finding?
In the process of evaluating the testimony, of weighing the evidence, to determine the question of its sufficiency, with the ultimate purpose of deciding whether the evidence sustains the finding of the trial court, it is important to have in mind a few fundamental principles, and to give them effect in the consideration of the question. These principles are:
(1) That a policy of insurance is to be liberally construed in [2] favor of insured, and strictly construed against the insurer. ( De Vore v. Mutual Life Ins. Co., 103 Mont. 599, 610, 64 P.2d 1071.)
(2) That this court indulges the presumption that the judgment [3] of the district court is correct and will be upheld unless clearly shown to be erroneous, the burden of showing which rests upon the appellant. ( Heberson v. Great Falls Wood Coal Co., 83 Mont. 527, 533, 273 P. 294.)
(3) That the finding of the trial court will not be disturbed [4] or reversed if the evidence, fully considered, furnishes reasonable grounds for different conclusions. ( Conner v. Helvik, ante, p. 437, 73 P.2d 541 and cases therein cited.)
(4) That the solution of any issue may rest in whole or in [5] part upon circumstantial evidence. ( Hier v. Farmers Mut. Fire Ins. Co., 104 Mont. 471, 67 P.2d 831, 110 A.L.R. 1051.)
It must be understood that the policy insured against "death [6] by accident." While it contained a definition as to just what the term means, viz.: "bodily injuries caused directly and independently of all other causes, by external, violent and purely accidental means," it is obvious that the definition did not alter the requirement that the death must be accidental. The term "accidental means" does not add to nor detract anything from that requirement. It is rather repetitious or explanatory. It really constitutes an endeavor to emphasize the fact that the element of accident must be the proximate cause of the death, as distinguished from something not accidental.
The new work, 1 C.J.S., page 425 et seq., contains a very full, complete, and comprehensive discussion of the words "accident" and "accidental" and their meaning. It is there said that neither word has a technical, legal meaning, but must be considered in the light of the common and accepted meaning, and construed according to common speech and usage — that the common understanding contemplates something unanticipated, unforeseen, and unusual, without design, intention, or premeditation. With these principles in mind, we must consider the facts and circumstances of the case.
Here the evidence discloses without contradiction that the [7] conditions of the fire were unusual, due to the location of the barn and the construction thereof — the exterior parts being covered with corrugated iron, a noninflammable material which may have confined the smoke and gas for a time so that they might have burst forth in unusually destructive quantities — the heavy smoke, perhaps also caused by the fact that a large quantity of hay and some livestock were burning along with all of the inflammable portions of the barn. The fire chief testified that the extraordinarily dense and suffocating smoke made the conditions so unbearable at times that it was impossible to remain near enough to the fire to fight it effectively. The site of the fire was just outside of the city of Lewistown. It was a rural fire, such as the fire department was rarely called upon to combat, necessitating the unreeling and laying of hose by hand — a fact to be considered, since it called for extra exertion on the part of deceased.
It is true that the evidence does not disclose any such definite physical accidents or occurrences as those described in the case of Stuart v. Occidental Life Ins. Co., supra, which accidents were there held to have been the accidental means furnishing the proximate cause of deceased's inhaling too much harmful smoke and gas fumes; however, deceased was here indisputably overcome by similar smoke and fumes the effects of which proximately caused his death. The facts and circumstances of this fire, although not furnishing as specific an example of something accidental, unusual, unforeseen, and proximate to deceased's death, nevertheless do furnish evidence from which reasonable men, or the trier of the facts, might draw different conclusions.
Fighting fires was in the day's work of the insured. Certainly his beneficiary cannot be compensated unless something of an unforeseen or unexpected nature occurred contrary to the usual course of things. It is true that there is, as the court quoted in the case of Stuart v. Occidental Life Ins. Co., supra, "a great distinction between a voluntary act and a voluntary exposure to danger. Hidden danger must exist; yet the exposure thereto without the knowledge of the danger does not constitute a voluntary exposure to it. The approach to an unknown and unexpected danger does not make the act a voluntary exposure thereto. * * * The act may be voluntary, yet the exposure involuntary. The danger being unknown, the injury is accidental."
There is nothing here to indicate that deceased had any knowledge of the unusual and exceptionally dangerous conditions to which he was subjected, and which were described by the fire chief as existing at the time. The matter, then, resolves itself into the question whether the facts, detailed by the witnesses, when taken with all of the circumstances surrounding the case, were sufficient to justify the trial court in the finding with relation to the cause of the death. It is our opinion that the facts and circumstances do disclose that something out of the ordinary in the nature of an accident did occur. It is true that deceased was handling and attempting to combat a dangerous and destructive instrumentality. We think it is likewise apparent that something out of the ordinary did occur, otherwise it was not to be expected that a healthy, rugged young man, in the prime of life, would be overcome in the manner described by the witnesses. It is impossible for us to say that there was no evidence adduced in support of the finding of the court.
The judgment is affirmed.
MR. CHIEF JUSTICE SANDS and ASSOCIATE JUSTICES ANDERSON, MORRIS and ANGSTMAN concur.