lows: tions of the constitution which defendant two instructions, numbered 3 and 4, as folsets out, namely, that the obligation of payment should not cover or extend to any death "happening directly or indirectly in consequence of disease or caused wholly or in part by bodily infirmity or disease, nor to any case except where the injury is external, accidental, and the proximate and sole cause of the death of the deceased member." There are other defenses set up in the answer but they were practically abandoned, the affirmative defenses abandoned either at the trial or before us, these affirmative averments of the answer, however, being put in issue by a reply. We have not undertaken to set out the evidence in detail but have given a summary of it which we have taken mainly from the elaborate statement of the learned counsel for appellant, but referring also to the abstract, as it appears on an examination of that, that doubtless by inadvertence, counsel have included some questions and answers that were later excluded by the court; these, on the strength of the abstract, we have disregarded. At the conclusion of the evidence for plaintiff and again at the conclusion of all the testimony in the case, defendant interposed a demurrer to the evidence. These demurrers were overruled, defendant excepting. At the instance of plaintiff the court gave two instructions, numbered 1 and 2, as follows: "1. If the jury find from the evidence that on the 27th day of December, 1908, John Thomas Goodes was a member in good standing in the defendant corporation and that while in such standing his death occurred, and that the direct cause thereof was bodily "3. The court instructs the jury that the plaintiff is not entitled to recover in this action unless the said John Thomas Goodes came to his death on or about the 27th day of December, 1908, as the result of external, violent and accidental means, alone, independent of all other causes, and the burden of proof is upon the plaintiff to establish to the satisfaction of the jury that the death was caused by external, violent and accidental means alone, independent of all other causes; and unless you believe that the plaintiff has established by a preponderance of the testimony that the death of said Goodes was caused by external, violent and accidental means, alone, independent of all other causes, that then your verdict must be in favor of the defendant. "4. The court instructs the jury if they find from the evidence that John Thomas Goodes did slip, fall or wrench his body in any way, and that such occurrence was caused by apoplexy or a cerebral hemorrhage brought on by a diseased condition of his arteries, the plaintiff cannot recover." Of its own motion the court gave an instruction numbered 5, that before the jury could find the issues for plaintiff, "they must find that the alleged accident to Mr. Goodes, that is to say his falling to the floor while attempting to sit down upon a dressing seat, was the direct and efficient cause of the death of the insured." The court also correctly instructed the jury as to the credibility of witnesses and as to the number of jurors necessary to concur in a verdict. The defendant asked eight instructions injury effected through external, violent and which were refused. The substance of these accidental means, alone, independent of all refused instructions is that if the jury found other causes, within six months of the hap- that the decedent, John Thomas Goodes, slippening of such accident, and that such death ped, fell or wrenched his body while sufferdid not happen directly or indirectly in ing from a diseased condition of the arteries consequence of disease and was not caused which existed prior thereto, and that his wholly or in part by bodily infirmity or dis- death would not have resulted from such slipease, and that there were external and visi-ping, falling or wrenching of his body, in the ble evidences or marks of such accident on the body of the deceased, and that the defendant, after notice of said death and presentation of claim, disclaimed all liability on other grounds than want of sufficient proofs of death, then plaintiff is entitled to recover the sum of $6300 with interest thereupon from the 22nd day of June, 1909, to this date, at the rate of six per cent. per annum. "2. If the jury find from the evidence that John Thomas Goodes accidentally slipped and fell from a stool and that such fall was the direct cause of a bursting of the blood vessels in the brain which resulted in his death, then the fall was the direct cause of death, notwithstanding the jury may find that said Goodes was suffering from diseased arteries, heart and kidneys." diseased condition aggravated the effects of absence of such diseased condition, or that the the accident and contributed to his death, then plaintiff could not recover; that the contract of the defendant order provides that it shall not be liable for any death happening directly or indirectly in consequence of disease or caused wholly or in part by bodily infirmities or disease, and that even if the jury found from the evidence that Goodes slipped and fell or wrenched himself, if they found from the evidence that he had a diseased condition of the arteries and that that diseased condition aggravated the effects of the accident and contributed to his death, then by the express terms of the contract there was no liability on the part of defendant; that if they found that Goodes suffered an accident and died as a result of a ruptured At the instance of defendant the court gave artery in the brain and that at and prior to the date of the accident he had a diseased | 1920-1922, inclusive), in his criticism of the condition of the arteries and that the accident was not of sufficient force and violence to cause a fatal rupture of the arteries in the absence of such diseased condition, plaintiff could not recover, and their verdict should be for defendant. Other instructions were asked as to the binding effects of the proofs of death submitted and as to the standing of John Thomas Goodes in the order, but as no point is made in the assignment of errors on the refusal of these or on these issues, it is unnecessary to notice them. The jury returned a verdict for plaintiff in the sum of $7,003.50. Interposing a motion for new trial and one in arrest and saving exceptions to the overruling of these motions, defendant has duly perfected its ap peal to this court. Thomas G. Rutledge, of St. Louis, and Vorys, Sater, Seymour & Pease, of Columbus, Ohio, for appellant. McDonald & Taylor, of St. Louis, for respondent. REYNOLDS, P. J. (after stating the facts as above). The only questions before us for determination are as to the sufficiency of the evidence in the case to sustain a verdict; the correctness of the ruling of the trial court in overruling demurrers at the close of plaintiff's case, and at the close of all the evidence in the case; objection to the testimony of certain expert witnesses called by plaintiff, and to the form of the hypothetical question asked by plaintiff; to the verdict, as based upon presumptions upon presumptions and inferences upon inferences; to the giving of plaintiff's second instruction; to giving instruction number 5 of the court's own motion; to refusing instructions asked by defendant. [1, 2] Disposing of the error assigned as to the correctness of the hypothetical question and the answers to it, we find no error in the question, nor do we think that the contention of the learned counsel for appellant, that the question and answers had a tendency to substitute the opinions and conclusions of the surgeons for the verdict of the jury, is sound. We do not agree with the learned counsel that the answers were mere conclusions, in the technical sense of that word. They constituted opinion evidence in the true sense of that term and were the very kind of evidence that the use of expert witnesses is intended to and should adduce. Counsel argue that expert witnesses "may not usurp the functions of the jury, nor be permitted, in answering hypothetical questions, to state what, in their opinion, was the cause of the death of insured." This is only partially correct. One of the functions, in fact the only function of an expert witness, is to give his opinion of the cause of death, basing that on the hypothetical case. We are very much inclined to agree with use of the phrase, "usurping the function of the jury," and of the kindred phrase, "that an opinion can never be received when it touches the very issue before the jury,'” the latter stated in the form that "it is a general rule that a witness cannot be allowed to express an opinion upon the exact question which the jury are required to decide." It can hardly be said that the opinion evidence of experts usurps the function of the jury, for even without a specific instruction to that effect, any ordinarily intelligent jury understands that "opinion evidence," while intended to advise the lay mind, is advisory only and not binding. Nor does "opinion evidence" in any case, determine the issue; it is not entered as of the verdict nor as the judgment of the court. So that it is a little difficult to understand how it can ever be said to usurp the function of the jury. In the case at bar, we find no infringement of the rule as to the admission of opinion evidence. To the contrary we are of the opinion that the rules governing such testimony, as laid down by our Supreme Court in Wood V. Metropolitan Street Ry. Co., 181 Mo. 433, 81 S. W. 152, Taylor v. Grand Ave. Ry. Co., 185 Mo. 239, 84 S. W. 873, and State v. Hyde, 234 Mo. 200, 136 S. W. 316, Ann. Cas. 1912D, 191, and by the Kansas City Court of Appeals in Thomas v. Metropolitan St. R. Co., 125 Mo. App. 131, 100 S. W. 1121, Holtzen v. Missouri Pac. Ry. Co., 159 Mo. App. 370, 140 S. W. 767, and Moore, Adm'r, v. Missouri Pac. Ry. Co., 164 Mo. App. 34, 147 S. W. 488, were observed. [3, 4] Turning to the demurrers to the evidence we have to say as to the action of the trial court in overruling these demurrers, that unless it is to be held as a matter of law that the fact that John Thomas Goodes had a diseased body which rendered him more susceptible to accident, or which would make a slight fall produce fatal results, bars recovery, a proposition which we will take up later, there can be no question whatever that there was testimony of a very substantial kind warranting the jury in finding that the death was the result of external injuries alone, received in, the result of, an accident. All the authorities, even those cited by counsel for appellant and hereafter referred to on other points, hold that where the evidence given at the trial, with all the inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant, otherwise, the case is for the jury. See Randall v. Baltimore & Ohio R. R. Co., 109 U. S. 478, 3 Sup. Ct. 322, 27 L. Ed. 1003, where that rule is well and concisely stated. It cannot be pretended in the case at bar that the evidence was so clearly all one way This brings us to a consideration of the instructions. No error is assigned on the first instruction given at the instance of plaintiff, nevertheless we have set it out in full, as the instructions given, as well as the action of the trial court in refusing others, are, generally, necessarily to be considered in arriving at a full understanding of the case. The errors assigned are to the second instruction given at the instance of plaintiff, to the fifth given by the court of its own motion, and to the action of the court in refusing certain instructions asked by defendant. ence as to its effect in the minds of reason- | of plaintiff recognized the first proposition in able men. The whole conduct of the de- unmistakable terms, and, as before remarkfense, in its line of pleading and at the trial, ed, no complaint is made of this instrucnegatives any such conclusion. The demur- tion. We are unable to agree that in the rers were properly overruled. case at bar the jury, in arriving at its verdict, were compelled "to base presumptions upon presumptions and inferences upon inferences." The jury were proceeding upon neither presumptions nor inferences but upon affirmative, positive testimony, distinctly laying before them the facts connected with the accident, connected with the death of John Thomas Goodes, and it was unnecessary for them to indulge in either inference or presumption and we have no reason to assume that they acted on either. This does not mean that the jury did not have the right to, and did not draw any and all proper inferences which the facts in evidence It will be noticed that the first instruc- warranted. That is always within their tion given covers the whole case and square- | province. ly meets the issue tendered by the learned counsel for defendant, namely, that plaintiff is entitled to recover if the jury found that the fall was the direct cause of the bursting of the blood vessel in the brain which resulted in the death of John Thomas Goodes, but that plaintiff could not recover if death happened directly or indirectly in consequence of disease. The second instruction given at the instance of plaintiff puts this matter in a more concrete form. "If," says the court, "such fall was the direct cause of a bursting of the blood vessels in the brain which resulted in his death, then the fall was the direct cause of death, notwithstanding the jury may find that said Goodes was suffering from diseased arteries, heart and kidneys." This presents the issue and covers the defense interposed in the most distinct and sharpest manner possible and is in direct negation of all the instructions asked by defendant and refused by the court. If this instruction, in connection with the first given at the instance of plaintiff, is correct, then none of the instructions asked by defendant should have been given. They presented a diametrically opposite theory. Hence the issue and the determination of this case depends upon the determination of the correctness of these instructions in connection with the others which were given. If these instructions and the fifth, given by the court, are correct, the verdict must stand; if incorrect, then there should be a reversal. [5, 6] Before taking up the discussion of this proposition, however, it is as well to say that we concede that the burthen of proof was on plaintiff below to show that the death of the insured was caused by bodily injury effected through external, violent and accidental means, and that this alone caused his death. We further concede that it is not permissible in a court of law "to base presumptions upon presumptions and inferences upon inferences." The first instruction which the court gave to the jury at the instance and that such [7] It is further claimed that where the evidence is as consistent with the cause of death not accidental as with an accidental cause, the verdict should be for the defendant. Whatever force there may be in this aphorism, we are unable to appreciate its application to the case at bar. The jury were told in plain and unmistakable terms by the first and practically in the second instruction given at the instance of plaintiff, as well as by those given for the defendant, that before they could find for plaintiff they must find from the evidence in the case that John Thomas Goodes came to his death while a member of the order in good standing "and that the direct cause thereof was bodily injury effected through external, violent and accidental means, alone, independent of all other causes, death did not happen directly or indirectly in consequence of disease and was not caused wholly or in part by bodily infirmity or disease, and that there were external and visible evidences or marks of such accident on the body of the deceased;" that they must further find from the evidence that "John Thomas Goodes accidentally slipped and fell from a stool and that such fall was the direct cause of a bursting of the blood vessels in the brain which resulted in his death," the court telling the jury in the second instruction that if he fell and burst a blood vessel, "then the fall was the direct cause of death, notwithstanding the jury may find that said Goodes was suffering from diseased arteries, heart and kidneys." It is difficult to understand how the court could have put more plainly to the jury the proposition that they were to determine that the accident was the sole, direct and proximate cause of the death of John Thomas Goodes. There is no confusion here; no diverting of the minds of the jurors. They were told distinctly that unless the accident was the direct cause of the death there could be no recovery, and that if his fall "was caused by apoplexy or a cerebral hemorrhage brought on by a diseased condition of his | 256, 73 S. W. 592, 61 L. R. A. 459, 97 Am. arteries, the plaintiff cannot recover." [8] They were further told by the first instruction that they must find that there were external or visible evidences of accident or marks on the body of the deceased. That is a correct proposition, as will be seen by reference to United States Mutual Accident Ass'n v. Barry, 131 U. S. 100, loc. cit. 111, 9 Sup. Ct. 755, 33 L. Ed. 60, and United States Mutual Accident Ass'n v. Newman, 84 Va. 52, loc. cit. 56, 3 S. E. 805, as well as in other cases cited by counsel. In the Barry Case, supra, the district judge who tried the case, in charging the jury, said: "Visible signs of injury, within the meaning of this certificate, are not to be confined to broken limbs or bruises on the surface of the body. There may be other external indications or evidence which are visible signs of internal injury. Complaint of pain is not a visible sign, because pain you cannot see. Complaint of internal soreness is not such a sign, for that you cannot see, but if the internal injury produces, for example, a pale and sickly look in the face, if it causes vomiting or retching, or bloody or unnatural discharges from the bowels, if, in short, it sends forth to the observation of the eye, in the struggle of nature, any signs of the injury, then those are external and visible signs, provided they are the direct results of the injury." This part of the charge was approved by the Supreme Court. [9] There was direct evidence in the case at bar, contradicted it is true, that blood issued from the ear and nostril of the deceased. That was a visible sign. With these incidental propositions, as we may call them, disposed of, we return to the consideration of that involved in the giving of the second instruction at the instance of plaintiff and the fifth given by the court of its own motion, and the refusal of the instructions asked by defendant, which, in brief, as before stated, presents the question as to the propriety of the jury taking into consideration the diseased condition of the arteries, heart and kidneys of John Thomas Goodes in arriving at the determination of the question as to whether the fall was the direct cause of his death. In support of their contention that but for the diseased condition of his body the accident would not have caused the death of John Thomas Goodes and that if that was so there could be no recovery, we are cited by the learned counsel for appellant to the cases of National Masonic Accident Ass'n v. Shryock, 73 Fed. 774, 20 C. C. A. 3, Travelers' Ins. Co. v. Selden, 78 Fed. 285, 24 C. C. A. 92, Commercial Travelers' Mut. Accident Ass'n v. Fulton, 79 Fed. 423, 24 C. C. A. 654, and Hubbard v. Mut. Accident Ass'n (C. C.) 98 Fed. 930. We are also cited by these counsel to Carr v. Pacific Mut. Life Ins. Co., 100 Mo. App. 602, 75 S. W. 180, and St. Rep. 560, in addition to these cases, in support of the proposition that when the violence of the injury was not alone sufficient to account for death, and the existence of the disease is an essential factor in the fatal result, plaintiff is not entitled to recover under the terms of the contract involved in this case. Western Commercial Travelers' Ass'n v. Smith, 85 Fed. 401, 29 C. C. A. 223, 40 L. R. A. 653, is also cited. It is true that the Kansas City Court of Appeals, in Carr v. Pacific Mut. Life Ins. Co., supra, did hold, following Commercial Travelers' Mut. Accident Ass'n v. Fulton, supra, that under a policy of accident insurance which provides that it shall not extend to nor cover accidental injuries or death resulting from or caused directly or indirectly, wholly or in part, by disease in any form, there can be no recovery for the death of the insured if he had a disease but for which death would not have resulted from the accident. The Kansas City Court of Appeals further cites in support of this National Masonic Accident Ass'n v. Shryock, supra, and other cases which so decide, notably Travelers' Ins. Co. v. Selden, supra; Commercial Travelers' Mut. Accident Ass'n v. Fulton, supra; and Hubbard v. Mut. Accident Ass'n, supra. The opinion in the Carr Case, supra, was handed down June 8, 1903. Two months before that, namely, on April 1, 1903, our Supreme Court handed down its opinion in Fetter v. Fidelity & Casualty Co., supra. It is not referred to in the Carr Case and in all probability was not called to the attention of the Kansas City Court of Appeals when it handed down its decision in the Carr Case. We think that the decision in the Fetter Case is contrary to that of the Kansas City Court of Appeals in the Carr Case, and, as we shall hereafter show, does not sustain but is adverse to the claim of appellant. We had occasion to consider the Fetter Case in the case of Beile v. Travelers' Protective Ass'n, 155 Mo. App. 629, 135 S. W. 497. In the Beile Case we held, in effect, that the policy in question excepted from its provisions of indemnity death caused wholly or in part by bodily or mental infirmity or disease. This language we held means nothing more than that the plaintiff, to recover, was only bound to prove that the accident and not the infirmity with which the insured was inflicted, was the proximate cause of death. In the Beile Case we referred to and quoted approvingly Driskell v. United States Health & Accident Ins. Co., 117 Mo. App. 362, 93 S. W. 880. There the policy provided, in effect, that it was payable only and in case death should result solely from external injuries, and it was said, and this we quoted approvingly in the Beile Case (155 Mo. App. loc. cit. 646, 135 S. W. loc. cit. 502) that "the only reasonable interpretation to be placed Travelers' Ins. Co. v. Selden, supra, while referring to the Shryock Case, supra, can hardly be said to be applicable, as the undisputed evidence of the case, even that on the part of plaintiff there, who was defendant in error, showed that the death was the result of apoplexy, and there was no evidence tending to show that the deceased had been injured through any external, violent or accidental means whatever. On this showing the Circuit Court of Appeals very properly held that the trial court should have directed the jury to find for the defendant on the rule announced by Mr. Justice Gray in Randall v. Baltimore & Ohio Railroad Co., supra. What is said in this Selden Case about the Shryock Case, supra, therefore, was outside of the decision. must stand out as the predominant factor in the effect of the disease or the disease agthe production of the result and not that it gravated the effects of the accident. "The must have been so virulent in character as death," says Judge Sanborn, who delivered necessarily and inevitably to have produced the opinion, "in such a case would not be that result regardless of all other conditions the result of the accident alone, but it would and circumstances. When evidence be caused partly by the disease and partly is introduced that points to the injury as the by the accident, and the contract exempted sole active force that brings into operation the association from liability therefor." Sevdeath-producing agencies, the issue of the eral cases are cited by the learned circuit proximate cause is one of fact for the jury judge in support of this proposition. Foland not of law for the court." That our lowing this are the federal decisions which brethern of the Kansas City Court of Ap- we have above referred to as relied upon by peals fell in line with what we understand counsel for appellant, namely, Travelers' Ins. to be the decision of our Supreme Court in Co. v. Selden, supra, Commercial Travelers' the Fetter Case, seems very clear from a Mutual Accident Ass'n v. Fulton, supra, consideration of the decision of that court in Western Commercial Travelers' Ass'n v. Hooper v. Standard Life & Accident Ins. Co., Smith, supra, and Hubbard v. Mutual Acci166 Mo. App. 209, 148 S. W. 116. In that dent Ass'n, supra. case the trial court instructed the jury that if they found and believed from the evidence that Hooper was stricken with apoplexy while riding in the street car and that he was so stricken either while sitting in a seat or in an attempt to arise therefrom, and that such apoplexy caused his death, then it was the duty of the jury to return a verdict in favor of defendant, and that if the jury should believe from the evidence that the death of Mr. Hooper was caused by apoplexy resulting from a diseased condition of his body, it was their duty to return a verdict in favor of defendant, "regardless of all other questions in the case." These instructions are held by the Kansas City Court of Appeals to have been erroneous; that while from the evidence of defendant it might appear that the deceased had died from apoplexy caused by a diseased condition, that is that he would not have died but for that condition and therefore under the terms of the instruction the verdict must be for defendant, yet the evidence for plaintiff was to the effect that if the accident of his falling had not happened he would not have been stricken with apoplexy. So that "the effect of the instruction," (given at the instance of defendant), says Judge Ellison, "was to cut out plaintiff's theory of her case; especially when there was added (by the court) the words (to the fourth instruction) 'regardless of all other questions in the case.'" It is clear, we think, that the Kansas City Court of Appeals has here greatly modified the view taken in the Carr Case by this decision in the Hooper Case. The leading case sustaining the position taken by counsel for appellant here is that of National Masonic Accident Ass'n v. Shryock, supra, hereafter referred to as the Shryock Case. In that case it is said that under an accident policy, practically with like conditions as in the case before us, the insurer would not be liable, if at the time of the accident, the insured was suffering from a pre-existing disease, and death would not have resulted from the accident in the absence of such disease, but that the insured had died because the accident aggravated Commercial Travelers' Mutual Accident Ass'n v. Fulton, supra, it may be conceded, practically adopts the view previously expressed by Judge Sanborn in the Shryock Case. Western Commercial Travelers' Ass'n v. Smith, supra, while adopting the view expressed in the Shryock Case on the above point, resulted in favor of the plaintiff below. Hubbard v. Mutual Accident Ass'n, supra, a decision by a District Judge holding Circuit Court, follows the Shryock Case on this proposition. It has been said in criticism of the Shryock Case, supra, that this particular part of it is obiter in that case. However that may be, it undoubtedly has been followed in other cases by the federal courts. It was cited by the Kansas City Court of Appeals in the Carr Case, supra, approvingly. It was called to the attention of our Supreme Court in the Fetter Case by counsel who represented the appellant in that case, but while not referred to by name by our Supreme Court in its opinion in the Fetter Case, obviously was not accepted. On practically a like policy or certificate of membership as that involved in the Shryock Case, which had been before the United State Circuit Court of Appeals, and involving the same accident and to the same in |