or there was thereby produced an involuntary movement, strain, wrenching, by means of which the injury was occasioned, that would be an accident within the spirit of this policy; that is, the means by which the injury was effected would in such case be accidental." (305 Mo. 619, 267 S. W. 907.) I will also notice three other cases which I do not find cited in the briefs of either appellant or respondent. They tend strongly to support appellant's contention. Ramsey v. Fidelity & C. Co. 143 Tenn. 42, 13 A.L.R. 651, 223 S. W. 841 (1920): A demurrer to the petition was sustained by trial court. Petition failed to charge that the injury was caused by accidental means. Insured had a tooth extracted, and bacteria entered the wound, resulting in a fatal attack of blood poisoning. Hall, J., said: "The bill does not allege that the tooth was pulled by accident, nor does it allege that any accident happened while the tooth was being pulled. The means by which the gum was injured were intentionally and purposely applied. The insured knew that the inevitable result of pulling the tooth would be to break down and lacerate the gum tissue. It was the result that followed the pulling of the tooth and the laceration of the gum tissue that was unlooked for, unexpected, and unforeseen. There can be no inference from the allegations of the bill that there was any accident in connection with the pulling of the tooth. The injury which resulted to the gum from the pulling of the tooth was the ordinary and natural result of such an operation. "It was held by this court in Stone V. Fidelity &C. Co. 133 Tenn. 673, L.R.A.1916D, 536, 182 S. W. 252, Ann. Cas. 1917A, 86, that the general rule is that an injury is not produced by accidental means within the meaning of an accident policy, where the injury is the natural result of an act or acts in which the insured intentionally engages. that case this court, speaking through Special Justice Fancher, "In that case Stone (the insured) had attended a football game on a cool day, when the ground was damp, and contracted a cold, resulting in lumbago, and [who], after medical treatment and the debility resulting from a purgative which he had taken, and while lying in bed, had a paper brought, reached for it, and raised it suddenly above his head, when his strong blood pressure caused a rupture of the retina, destroying the sight of one eye. In that case the court further said: "The movement of the hand sudden ly to get the paper was executed exactly as intended. It was a simple and ordinary movement. The rushing of the blood with excessive pressure, rupturing the retina, was therefore caused by natural means. While the result was not foreseen, the causes producing that result were not accidental. It is well in line with the cases above cited sustaining the majority rule, which we adopt. This rule affords a reasonable interpretation of the contract.' "Mr. Joyce, in his recent work on Insurance, states the rule thus: 'In this connection it may be noted that the language of the policy may, it is held, warrant a distinction between accidental death and accidental means. Thus in case of an insurance against death from bodily injury caused by violent, and In accidental, external, visible means, the court said: "A person may do certain acts the result of which acts may produce unforeseen consequences, and may produce what is commonly called accidental death, but the means are exactly what the man intended to use, and did use, and was prepared to use. The means were not accidental, but the result might be accidental." be accidental." This distinction is more clearly apparent where the policy uses words intended to qualify or extend the rule as to proximate and remote cause, as where the provision is, "shall die from the effects of such injury." Here the death need not be immediately caused by the injury, yet if the injury was immediately caused by the accident, and the death ensued as a natural consequence or effect of the injury, then the assurer is liable. So, in an Iowa case a distinction is also made between an accidental cause and an accidental result, between an agreement to pay the policy amount in case assured should meet with an accidental death, and in undertaking to pay said amount in case assured's death is produced by accidental means. In other words, the result may not have been intended nor anticipated, and may have been such that it could not have been foreseen. The voluntary and intentional act of the person suffering the unanticipated result may have been the immediate cause of the result. Nothing may have been done or have occurred which assured had not foreseen and planned, except the injury and the consequence resulting therefrom, and, again, the result which follows assured's act may not have been the usual result thereof, but may have been unusual and unexpected and still not be accidental, as where the act which produced such unexpected result was voluntary. The above applies. where the policy provides for recovery in the event of death, but only where death results from bodily injuries effected solely by external, violent, and accidental means. The means which cause the injury only, and not the injury itself, are referred to by the clause of an The opinion then cites and quotes from numerous cases we have discussed, and affirmed the action of the trial court, and concluded as follows: "We think, according to the great weight of authority, the rule is that the means must be accidental. It is not sufficient that the illness or death that followed the means was accidental. In the instant case the injury to the gum, from which blood poison resulted, was the natural result of pulling the tooth, and one which the insured knew would be inevitable.' Herdic v. Maryland Casualty Co. 79 C. C. A. 156, 149 Fed. 198 (C. C. A. 3d C.; 1906): Insured's death resulted from septicemia ensuing upon a surgical operation for appendicitis. The action of the trial court in sustaining a demurrer to the statement of claim or petition was affirmed. The policy covered death resulting from septicemia, but the court held that the policy did not cover such death, unless caused by accidental means. No cases were cited. The ruling was based upon a construction of the policy itself. The petition alleged that defendant "did insure Carl Herdic in the sum of $5,000 against death from septicemia," and evidently did not charge that such septicemia was caused through accidental means. Kendall v. Travelers' Protective Asso. 87 Or. 179, 169 Pac. 751 (1918): Plaintiff appealed from an order granting defendant a new trial. The order was affirmed. The court held the following instructions requested by defendant should have been given: "The jury is instructed that, if plaintiff directed the barber to remove the ingrowing hairs from his chin, and the barber proceeded to remove the hair under instructions from plaintiff, plaintiff cannot recover in this case, even though the (305 Mo. 619, 267 S. W. 907.) work of the barber was unskilfully done, and the results were such that neither the plaintiff nor barber anticipated. "If the abrasion of plaintiff's chin was due to the intentional act of the barber in endeavoring to remove an ingrowing hair thereon, plaintiff cannot recover, and your verdict should be for the defendant." The court then said: "We note that the defendant does not insure merely against injuries, although they might constitute an unexpected effect. The damage, whether anticipated or not as a result, must have happened through accidental, violent, and external means. All three of these ingredients must unite to form the cause of the subsequent hurt before there can be a recovery under the admitted terms laid down in the constitution and by-laws of the defendant. A man's leg might be broken by a runaway team coming suddenly upon him from behind. He might reasonably expect to be confined to his bed for some weeks, and yet the cause of the fracture would be accidental. On the other hand, he might purposely inflict upon himself a slight pin scratch which would ordinarily pass untouched and septicemia might ensue and unexpectedly amputation of the injured part might become necessary, yet the scratch would not be accidental. In other words, under such a policy as this the liability must be determined by causes rather than consequences. "It may be conceded that the injury inflicted by the barber's tweezers was external. We cannot stop to weigh and haggle about the degree of violence involved. The question to be determined is whether the cause of the injury was accidental, and whether the instructions asked for should have been given. "The jury might consider that it was impossible to perform the required operation without making some incision of the skin so as to reach the hair growing underneath, and that on that account the barber intentionally, and with the implied consent, at least, of the plaintiff, made the cut which afterwards became infected. This would not be unwarranted conclusion from the plaintiff's own testimony. If, therefore, the wound was made intentionally, it would not come within the meaning of the term 'accidental means.' Consequently the fifth and sixth instructions should have been given to the jury." The court then cited approvingly some of the cases we have discussed, where it was held that the unexpected result of an intentional act does not constitute accidental means. Some of the text-writers have announced the rule that accidental means are those which produce effects which are not their natural and probable consequences. In Cooley's Briefs on the Law of Insurance, vol. 4, p. 3156, it is said: "An effect which is not the natural or probable consequence of the means which produced it, an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of such means, an effect which the actor did not intend to produce and which he cannot be charged with the design of producing, is produced by accidental means." This announcement is based on many of the cases I have discussed. There appears to be confusion between cause and result. The alleged rule involves acceptance of the accidental result as the equivalent for accidental cause. A review of the various texts on the subject would be of little value, since they are largely mere digests of cases herein discussed. As above indicated, the rule that injury or death is produced by accidental means when the result is unusual, unexpected, or unforeseen seems largely to be built upon a misconception of the case of United States Mut. Acci. Asso. v. Barry, 131 U. S. 100, 33 L. ed. 60, 9 Sup. Ct. Rep. 755, above discussed. That case clearly lays down the rule con tended for by defendant in the case at bar. In discussing "accidental means" Mr. Justice Blatchford most correctly said that the jumping off the platform was the means causing the injury, and that the question submitted to the jury was whether there occurred anything accidental, unforeseen, involuntary, or unexpected in such act of jumping, that is, in the means which produced the injury, from the time deceased left the platform until he alighted upon the ground. That which occurred when Dr. Barry alighted upon the ground was clearly the result. It was not enough that the result was unexpected, unforeseen, or out of the ordinary. The learned justice then laid down the proposition, which seems to me is decisive of this case and fully sustains defendant's contention here, "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." Could language be plainer? The words "in a not unusual or unexpected way" plainly modified the verb "employed," and not the the preceding verb "follows." If the language could possibly be made plainer, it would be by saying that, where the means which causes the injury was voluntarily employed in the usual Insurance and expected way, what is acci- the resulting indental means. jury is not produced by accidental means, even though such resulting injury is entirely unusual, unexpected, and unforeseen. "Means" in the plural form, but in the singular sense and construction, is defined by Webster's New International Dictionary as "that through which, or by the help of which, an end is attained; something tending to an object desired; intermediate agency or measure; thing caused insured's death. It is not enough that there be suspicion, guess, possibility, or speculation that something unexpected, unusual, or unforeseen occurred during the operation. She must prove it as a fact to the satisfaction of the jury, else the policies in suit must be regarded as restricted life, and not as accident, insurance policies. No duty rested upon defendant to show that insured did not die through accidental means. Plaintiff must offer substantial proof that he did die through accidental means, and, failing to offer such proof, cannot be permitted to recover under insured's accident insurance policies. It is clear beyond cavil that plaintiff offered not the slightest proof that anything unforeseen, unusual, or unexpected occurred while the operation was being performed. She has offered only proof tending to show that an unforeseen, unusual, and unexpected result followed the performance of an apparently necessary surgical operation undertaken at request of insured and skil- expected death fully performed. She is therefore not entitled to recover, and the judgment below should be reversed. Insuranceaccident-un from operation. The views above outlined are con (305 Mo. 619, 267 S. W. 907.) trary to those announced by the Piling inference upon inference. Defendant also contends that its demurrer to the evidence should have been sustained because the conclusion as a fact that insured died as a result of the operation for the hernias can only be reached by mounting inference upon inference; that is to say, it must first be inferred that the obstruction of the bowel, conceded to have been the immediate cause of death, was brought about by a thrombus in the mesenteric artery, and then it must be further inferred that the thrombus was caused by the operation. Before the judgment can be affirmed this contention must be resolved against defendant. In the view I have taken and have above outlined at necessary but unusual length, it becomes unnecessary to pass upon this contention, and I will not notice it further than to state the presence of the question in the record before us. Plaintiff's involuntary election. Plaintiff has filed an additional abstract of the record, showing the action of the trial court in requiring her to elect as between the first and third counts of the petition, upon the one hand, or upon the second and fourth counts thereof upon the other, and her involuntary election to stand upon the second and fourth counts. Such additional abstract shows that plaintiff's exception was duly saved by sufficient term bill of exceptions. If it be assumed that the trial court erred in requiring such election, we see no way to correct such alleged error upon defendant's appeal. Plaintiff did not appeal from the order requiring her to elect as between such counts. It therefore becomes unnecessary to consider defendant's contention, made in its brief, that the trial court prop Appeal-ruling erly required such not appealed election as between from. the first and third counts and the second and fourth counts, because they set up alleged inconsistent claims. For the reasons heretofore stated, the judgment below is reversed, and, because of apparent conflict between this opinion and Eicks v. Fidelity & C. Co. supra, decided by division 1, the cause is ordered transferred to the court en banc. All concur. Per Curiam: The foregoing opinion of David E. Blair, J., is adopted as the opinion of the court en banc. All concur, except James T. Blair, J., not sitting, and Walker, J., ab sent. Petition for rehearing denied December 18, 1924. ANNOTATION. Injury during, or as a result of, surgical or dental operation as one effected by external, violent, and accidental means within policy of accident insur ance. This annotation supplements the earlier annotation on the same subject in 13 A.L.R. 660. 39 A.L.R.-6. As to death or injury resulting from insured's voluntary act as caused by accident or accidental means, see an |