#### AARON T. PENN v. STANDARD LIFE INSURANCE COMPANY.

(Filed 7 November, 1912.)

1. Contracts — Courts—Interpretation.

Tbe courts can only interpret a contract'lawfully entered into between parties legally and mentally competent to make it.

2. Insurance — Policy Contract — Interpretation — Accident — Independent Cause.

A policy of accident insurance creating a liability on tbe part of tbe insurer for injuries sustained by tbe insured “directly and independently of all other causes, through external, accidental, and violent means,” is lawful and enforcible by tbe insurer in accordance with its terms.

3. Same — Instructions.

In an action to recover under an accident insurance policy for tbe loss of eyesight wkereunder the insurer was liable for injuries sustained by tbe Insured “diréctly and independently of all other causes, through external, accidental, and violent means,” there was evidence tending to show that the plaintiff’s eyesight was lost by reason of an old cataract existing before the accident, as well as that the accident had caused the loss of vision. The *400court charged the jury that if they found by the greater weight of the evidence that the plaintiff’s loss of his eyesight was caused directly and independently of all other causes, through external, accidental, and violent means, to answer for the plaintiff; but otherwise if the accident operated in connection with another cause: Held, the charge was correct and not objectionable on the ground that it would deny a recovery in a case where there was a former malady and an accident, and the latter directly produced the injury as the efficient cause thereof, though the malady itself would have resulted in the same injury, at a later time.

4. Insurance — Policy Contracts — Interpretation—Accidents—Independent Cause — Definitions—Liability.

In construing a policy of accident insurance against injuries sustained by the insured “directly and independently of all other causes, through external, accidental, and violent means,” it is Held, (1) When an accident causes a diseased condition which; together with the accident, resulted in the injury or death complained of, the accident alone is to be considered the cause of the injury or^death; (2) When at the time of the accident the insured was suffering from some disease', but the disease had no causal connection with the injury or death resulting from the accident, the accident is to be considered as the sole cause; (3) When at the time of the accident there is an existing disease which, cooperating with the, accident, resulted in the injury or death, the accident cannot be considered as the sole cause, or as the cause independent of all other causes.

5. Insurance — Policy Contracts — Interpretation — Accidents—Independent Cause — Proximate Cause — Causal Connection.

When the loss under a policy -of accident insurance' is made, by its terms, to depend upon injury or death “resulting from accident, independent of all other causes,” the rule of proximate and remote causes cannot be applied, the question being, upon an issue of fact presented, whether the disease with which the insured was suffering at the time of the accident had causal connection with the injury inflicted by the accident.

6. Instructions — Alternate Theories — Appeal and Error — Special Requests for Instructions — Procedure.

The failure of the trial judge to charge the jury upon alternate theory correctly stated and arising upon the evidence in the case, does not necessarily render the charge incorrect, and no reversible error will be held on appeal for the mere failure of the judge to charge the alternate theory in the absence of a special instruction ashed and refused.

*4017. Instructions — Construed as a Whole — Appeal and Error.

The charge of the trial judge to the jury should, be construed as one connected whole, and not in detached portions, and it will not be held for error when, thus considered, the meaning of the charge clearly appears, and the jury could not have been misled.

Appeal by plaintiff from Adams, J., at August Term, 1912, of ROCKINGHAM.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walker.

Morehead & Moreltead, Sapp & Williams, and Justice & Broadhurst for plaintiff.

G. S. Bradshaw and T. II. Calvert for defendant.

Walker, J.

Tbis is a petition to rebear tbis case, wbicb was decided by us at Fall Term, 1911, and is reported in 158 N. C. at p. 29, where tbe facts are stated. There is no new question in tbe case, as now presented, but tbe learned counsel for tbe plaintiff think that we have misapprehended tbe true nature and meaning of tbe charge of Judge Adams, who presided at tbe trial, and that, if properly construed, it would deny a recovery in a case where there was a former malady and an accident and tbe latter directly produced tbe injury as tbe efficient cause thereof, provided tbe malady itself would have resulted in tbe same injury, though at a later time. It is also said that certain expressions of tbe Court in tbe opinion indicate that it was clearly not tbe intention so to decide. As to tbe latter suggestion, we agree with counsel, but-we do not as to tbe former.

What tbe Court intended to decide, and did decide, was that there must have been a union of tbe two causes, so that they cooperated in producing tbe injury, and if tbe accident was tbe sole cause, or produced tbe result independent of all other causes, recovery could be bad in such a case, and we are of tbe opinion now, as we were at tbe former bearing, that tbe judge so charged tbe jury. Tbe instruction will not bear any other construction, as will appear from tbe following extract:

“If you find from tbe evidence, and by tbe greater weight of it, that tbe plaintiff has suffered tbe entire loss of tbe sight of his eye; that the loss of bis sight is irrecoverable; that the loss *402was caused directly and independently of all other causes, through external, accidental, and violent means, your answer to the second issue will be ‘Yes:’ If you do not so find, your answer will be No.’ ” The other part of the instruction merely informed the jury that if the accident did not cause the injury directly and independently of all other causes, but operated in connection with another cause, the case would be different, and the jury must have so understood it.

It must be remembered that we are construing a contract not of our making, and the terms of which we cannot alter, and not discussing the law of negligence and the doctrine of proximate cause. The plaintiff and defendant had the legal right to make any contract with each other, not unlawful in itself, both being at arm’s-length and in the full possession and enjoyment of their mental faculties. We must decide the case, therefore, not by what we may think would have been a wiser and more discreet contract on the part of the plaintiff if he could have procured such a one, but by what is written in the contract actually made by them. Courts are not at liberty to rewrite contracts for the parties. We are not their guardians, but the interpreters of their words. We must, therefore, determine what they meant by what they have said — what their contract is, and not what it should have been. We said as much in our former opinion: “As long as parties who are capable of doing so shall be permitted to make their own contracts, it is the plain duty of the Court to enforce them as they are written, unless fraud or public policy shall intervene. Binder v. Accident Association, 127 Iowa, 25 (35). While the rule is thoroughly settled that policies of this and like character are to be construed liberally, and that ambiguous provisions, or those capable of two constructions, should be construed favorably to the insured and most strongly against the insurer, plain, explicit language cannot be disregarded, nor an interpretation given the policy at variance with the clearly disclosed intent of the parties. Taking the policy in the case at bar by its four corners, it will admit of but one construction. White v. Insurance Co., 95 Minn., 77. In Carr v. Insurance Co., 100 Mo. App., 602, the Court said that the question of proximate and immediate cause is not raised under the condi*403tions of a policy which, in terms excludes disease or bodily infirmity, and which could have no more force than the general provision, ‘independent of all other causes.’ See, also, Mut. Association v. Fulton, 79 Fed. Rep., 423. If the jury had found that the injury was caused by the sum of two causes, that is, that the accident and the preexisting cataract and diseased condition of the eye were together responsible for the subsequent blindness, the plaintiff could not have recovered, as the injury must have resulted from the accident, ‘independent of all other causes.’ ”

We did not before fail to consider, in its full scope, the language of the learned judge in charging the jury, and, after a more careful examination of his instructions, we do not think that, in word on phrase, he so narrowed the terms of the insurance contract as to prejudice the plaintiff’s rights, but that he correctly stated the law which is applicable to the case. “

There was a disputed question of fact presented by the testimony, whether the plaintiff was suffering from a cataract on his eye at the time of the alleged fall, or whether the fall produced a cataract. In addition to the testimony recited in the brief for the petitioner, testimony by Dr. McGee was given as follows: “He complained of pain in his left eye and in the lower third thigh, right side. On examination of his eye, I found that he had an old cataract, and so told him. He had particles of dust around his eye. I put a little antiseptic solution on that. I found no evidence of traumatism or blow on the head, nor any inflammation. I found an old cataract and told him it was from an old injury; that it was produced by some injury in the past. It is possible to have a blow on the eye or on the head that will cause a rupture of the lens, and cataract follows. I found no sign of an injury resulting from a ‘fall from the train. It takes a cataract some time to form and develop from a traumatic injury. The catkract I saw had been forming for months.” The petitioner, as we understand, concedes, both in the petition and in the brief filed in support of the petition, that the decision is right in holding that if the jury had found tha^t the injury was caused by the sum of two causes — -that is, that the accident and preexisting cataract and *404diseased condition of the eye were together responsible for the subsequent blindness and united sensibly and efficiently in producing it — the plaintiff could not have recovered, as the injury must have resulted from the accident, “independent of all other causes.”

Eeasoning from the authorities cited in the briefs filed by both parties in the appeal, and in the former opinion of the Court, and the admittedly correct proposition above stated, it appears that under policy contracts such as the one under consideration, three rules may be stated:

1. "When an accident caused a diseased condition, which together with the accident resulted in the injury or death complained of, the accident alone is to be considered the cause of the injury or death.

2. "When at the time of the accident the insured was suffering from some disease, but the disease had no causal connection with the injury or death resulting from the accident, the accident is to be considered as the sole cause.

3. "When at the time of the accident there was an existing disease, which, cooperating with the accident, resulted in the injury or death, the accident cannot be considered as the sole cause or as the cause independent of all other causes.

The petitioners rely on the case of Fetter v. Casualty Co., 174 Mo., 256. That was an action on a policy which insured the life of the plaintiff’s father against bodily injuries sustained through accidental means, and the company promised to pay a certain sum if death should result from such injuries, independent of all other causes. It appeared that the deceased suffered a fall, producing a rupture of a kidney, from which rupture followed a hemorrhage, which caused his death. He submitted to an operation and died just less than thirty days from the- day of his fall. An autopsy showed that one of the kidneys had been ruptured and that the lower end of the kidney was cancerous. There was a judgment for the plaintiff, and the appellate court affirmed the judgment. Several doctors had been examined as experts, differing in their opinion on the question of fact whether a cancerous condition of the kidney existed before the fall, and with the fall had produced the rupture, or *405whether the fall itself had produced the rupture and this had brought about, in that short time, the cancerous condition. The Court held that, on this conflict of testimony, the jury had the right to find that the ruptured kidney caused the cancerous growth, and that the rupture of the kidney was caused by the fall “independent of all other causes,” and said: “Under those facts and in the light of the scientific evidence, who can say with certainty that the blow which ruptured the kidney did not also cause the cancerous growth? On the question of whether or not the blow caused the cancer, if the jury had found either way, the verdict would have had honest, intelligent, scientific testimony to support it.” This part of the opinion in that case was sufficient to dispose of the appeal, and the further discussion of the ordinary rule of proximate cause was unnecessary to the decision of the case, and, we respectfully think, was. erroneous as applied to a policy which permits recovery only when the injury or death results from the accident solely or independent of all other causes.

The rules of proximate and remote causes, as understood in the law of negligence, cannot be justly or safely applied under a contractual stipulation that the injury or death must have “resulted from the accident, independently of all other causes,” and when an issue of fact is presented whether the person was suffering from a disease which had causal connection with the injury or death.

As further evidence of the fact that a discussion of the doctrine of remote and proximate causation was not essentially involved in the case of Fetter v. Casualty Co., supra, and that what was decided in that .case does not necessarily conflict with the charge of the court in this case, we may well refer to two or three expressions of the Court, which seem to place its decision upon the ground that the accidental fall against the table, while attempting to raise the upper window sash, was the real, efficient cause of the death, and all sufficient. Judge Valliant said: “There is no question but that the fall of the insured against the table, striking his side heavily against its edge, was accidental, and that it produced the rupture of the kidney which caused the hemorrhage which caused his death. All the wit*406nesses concur in that. . . . The undisputed evidence and conceded facts make out a prima, facie case for the plaintiffs, and the defense that there was a remote predisposing cause of the death was given as full and fair consideration as the defendant was entitled to, and there is not sufficient in the evidence bearing on it to justify any impeachment of the verdict. The theory of the instructions given at the request of the plaintiffs is that if the death of the insured resulted from the accidental rupture of his kidney, the plaintiffs were entitled to recover. These were supplemented by the modified instruction for defendant that the plaintiffs could not recover unless the ‘accident was the sole and only direct cause of death.’ Those instructions taken together put the case on the correct theory, and they include whatever there legitimately was in the defendant’s theory of any other cause. There was really so little in the remote-predisposing-cause theory that the court .would have been justified in ignoring it altogether.”

A discussion of proximate and remote causes can be pertinent only when it appears that there have been two or more causes and when a judicial selection must be made as between the different causes, and a choice made of one as the proximate cause. In such a’ case, two causes have operated together, and we are looking for the one which was the efficient, and therefore the legal, cause of the injury. This is entirely different from a case in which we are dealing with the condition of a policy, that the injury or death must have resulted from the accident “independently of all other causes.”

Though the Court, in Freeman v. Accident Association, 156 Mass., 350, recognized the application of some sort of a rule of proximate cause, it stated it in a qualified or limited manner, as follows: “When different forces and conditions concur in producing a result, it is often difficult to determine which is properly to be considered the cause, and, in dealing with such cases, the maxim, causa próxima non remota spectatur, is applied. But this does not mean that the cause or condition which is nearest in time or space to the result is necessarily to be deemed the proximate.” And then the Court proceeded to affirm an instruction substantially like the one excepted to in this case, as is hereafter pointed out.

*407In White v. Accident Insurance Co., 95 Minn., 77, the Court said that the rule of proximate cause, as applied to actions of negligence, cannot be applied in its full scope to contracts of this nature. The Court, in that case, so clearly stated the accepted rule, that we give its own language: “Similar policies have been before both the State and Federal courts, and the consensus of judicial opinion is that, subject to the exceptions contained in the policy, if the injury be the proximate cause of death, the company is liable, but if an injury and an existing bodily disease or infirmity concur and cooperate to that end, no liability exists. If, however, the injury be the cause of the infirmity or disease — if the disease results and springs from the injury — the company is liable, though both cooperate in causing death. The distinction made in this particular is found in that class of cases where the infirmity or disease existed in the insured at the time of the injury, and, on the other hand, that class of cases where the disease was caused and brought about by the injury. And even in cases where the insured is afflicted at the time of the accident with some bodily disease, if the accidental injury be of such a nature as to cause death solely and independently of the disease, liability exists.”

Coming, then, to a particular examination of the instruction objected to, it seems to fall naturally within the terms of the third rule above stated, “that when, at the time of the accident, there was an existing disease which, together with the accident, resulted in (that is, had causal connection with) the injury or death, the accident cannot be considered as the sole cause or as the cause independent of all other causes.” It should be understood that in the case of an accident resulting in injury or death, if there was an existing disease having also a causal connection therewith, it is not necessary that the disease should itself have been one which would ultimately have proved fatal, or that it should be, of itself, sufficient to have caused the injury or death. Under the rule that, where the injury or death has been caused by the sum of two causes, it is sufficient to prevent a recovery on the policy, if any ordinary disease, not itself necessarily fatal, should contribute with the accident to cause the death, that is, if without the presence of the disease the *408accident itself would not have been sufficient to have caused tbe injury or tbe death. And so in tbis case, it would have been sufficient to have shown a diseased condition of tbe eye which, together with the alleged accident, resulted in blindness. It is not necessary in such a case to show that the disease of the eye was such that it would ultimately have resulted' in blindness. In this view of the case, the plaintiff certainly has nothing to complain of in the instruction given. If the verdict and judgment had been for the plaintiff, the defendant might have had ground of complaint, in that the instruction virtually told the jury that the plaintiff could recover unless they should find that the blindness was caused by the combined effect of the alleged accident and such a disease of the eye as would ultimately have resulted in blindness, because both causes might have produced the blindness, without either being completely sufficient to that end. The instruction of the court must be read in view of the facts in the case, and with the alternative proposition stated: “But if you find from the evidence and by the greater weight of it that the plaintiff has suffered the entire loss of sight of his eye; that the loss of his sight is irrecoverable; that the loss was caused directly and independently of all other causes, through external, accidental, and violent means, your answer to the second issue will be ‘Yes.’ ” Not only is the instruction within the third rule above stated, upon reason, but there is authority (Freeman v. Accident Association, 156 Mass., 351) clearly sustaining, against attack by the beneficiary under such a policy, an instruction substantially the same as the one objected to in the case at bar, and given upon facts practically similar to those appearing in this record. In the Freeman case it was proved that the insured died of peritonitis localized in the region of the liver. There was evidence indicating that he had previously had peritonitis in the same jmrt, and that the previous disease had produced effects which rendered him liable to a recurrence of it. The Court approved the charge under review, which instructed the jury: “The question as to whether or not peritonitis, if that caused his death, is to be deemed a disease, within the meaning of this policy, so far as to prevent a recovery, depends upon the question whether or not, before *409tbe time of tbe fall and at tbe time of tbe fall, be bad tben tbe disease — was tben suffering witb tbe disease. If be was, tben in tbe sense of tbe policy, although aggravated and made fatal by tbe fall, be cannot recover.” In tbe brief filed in support of tbe petition to rebear, counsel say: “Even if be bad a cataract wbicb existed prior to tbe fall, and, notwithstanding tbe cataract, tbe fall did cause tbe loss of bis sight, and would have caused it if be bad not a cataract, be would be entitled to recover.” For tbe purpose of tbe argument, it may be admitted that this states, a correct proposition, and yet if it does, it is merely an alternative theory that might have been submitted to tbe jury, and it does not follow that tbe instruction excepted to was erroneous. It is too late now to urge that tbe court should have instructed tbe jury on that theory of tbe case, because if a correct one, a special instruction should have been asked. Simmons v. Davenport, 140 N. C.(Anno. Ed.), 407, and cases cited.

The decision of this Court, that injury or death caused by tbe sum of two causes, namely, accident and disease, is not covered by tbe policy, is sound, as we think. Tbe instruction excepted to, when properly considered, is but one way of stating tbe rule, and is well within tbe rule, and on tbe facts testified to, tbe jury bad tbe right to find that tbe blindness was caused by tbe alleged accident combined witb a disease which affected tbe eye at tbe time of tbe accident.

It would be idle and useless to repeat what was said in our former opinion about this casé ánd tbe rule wbicb controls its decision. We tben discussed tbe matter at great length, because of tbe importance of tbe principle involved, and cited numerous authorities, wbicb we think sustain our view. Before taking final leave of tbe case, we will refer to Fishblate v. Insurance Co., 140 N. C., 593, cited by tbe petitioner (plaintiff) on this rehearing, in which an instruction substantially similar to tbe one under examination was given to tbe jury and was upheld by this Court, Justice Hoke saying: “This charge might be held on tbe first issue.” What was tbe first issue to wbicb this reference was made? It was this: “Was tbe plaintiff’s eye lost as a result directly or independently of all other causes, from *410bodily injuries sustained through external, violent, and accidental means ?” The same inquiry we have in the case at bar ? It is true, the learned judge added, “and is perhaps more favorable to the defendant on that issue that he could require”; still this does not neutralize or destroy what had previously been stated, and, besides, he cites with approval Freeman v. Accident Association, 156 Mass., 357, which we also cited in our former opinion, and which, it seems to us, is a direct authority in support of the instruction of Judge Adams. The latter did not intend to say that the mere existence of a previous malady at the time of the accident would defeat recovery, if, by itself, it would ultimately have produced the injury, although it did not cooperate with the accident in causing it, but that if the two> accident and disease, acting together, were the producing causes of it, the plaintiff could not recover, as in that case the accident was not, within the terms of the policy, the direct and independent cause, but the injury was produced “by the sum of these two causes.” Ward v. Insurance Co., 85 Neb., 471; Casualty Co. v. Shields, 155 Fed. Rep., 54; Cary v. Insurance Co., 127 Wis., 67; Accident Association v. Shyrock, 73 Fed. Rep., 423; Accident Association v. Fulton, 79 Fed. Rep., 423; White v. Insurance Co., 95 Minn., 77; Binder v. Accident Association, 127 Iowa, 25 (35), and 1 Cyc., 262, and note 64, where the doctrine is tersely stated and the cases bearing upon it are collected.

The judge’s charge should be construed as one connected whole, and not in detached or isolated portions (Kornegay v. R. R., 154 N. C., 392), and when thus considered, the meaning of the court clearly appears, and we think the jury could not have been misled by the instruction.

Petition dismissed.