The opinion
POPE, Circuit Judge.
I dissent. In my opinion the majority have completely disregarded the controlling Idaho decision and have ignored the clear and unequivocal language of the policy.
The exclusion clause, quoted at length in the majority opinion, provided that: “Double indemnity shall not be payable if the insured’s death resulted * * * directly or indirectly, from infirmity of mind or body, from illness or disease, or from any bacterial infection * * * ” etc.
The facts of the case as we must deal with them, are those disclosed by plaintiff’s own witnesses, — those most favorable to her. The two physicians, whose testimony furnishes these facts, agreed that the thrombus, from which the death-causing embolus came, was a “bodily infirmity”, which came .about in consequence of an operation several years earlier, and that the thrombus was probably located in the pelvic veins. Dr. Call testified:
“Q. Then it was a condition within his body at the time of the last operation? A. Yes, sir.
“Q. It was what we could term a bodily infirmity? A. That’s right.
“Q. If he had no bodily infirmity there could not have been an embolism ? A. That is pretty broad. There are embolisms that form without bodily infirmities.
“Q. This was not such? A. This was bodily infirmity.
“Q. Whether you say it came from the operation performed on April 7, or whether it came from some other cause, it was from bodily infirmity? A. Yes, sir.
“Q. That was ultimately the cause of his death? A. Yes, sir.” 1
*539 The controlling authority here is Rauert v. Loyal Protective Ins. Co., 61 Idaho 677 , 106 P.2d 1015 . In that case the corresponding excluding clause read: “General Conditions and Provisions. * * * E. Indemnity shall not be payable for death due to disease, whether acquired accidentally or. otherwise, nor for injury unless same be the result of accidental means, and not wholly or partly, directly or indirectly, the result of disease.” In passing upon the effect of this clause, the court devoted itself to a review of the evidence as to the old adhesion in the bowel which made the fibrous ring which caused the bowel obstruction which resulted in death. It was pointed out that the medical testimony was that some of the doctors “would not call it disease”. It was because there was at least a conflict of evidence upon this point that the court arrived at its conclusion that the verdict for plaintiff might stand.
Here, the exclusionary clause is broader, —it uses the words, “infirmity of mind or body” as well as, “illness or disease”. And here there is no conflict or doubt whatever in or about the medical testimony,— both doctors pronounced the thrombus which resulted from the old operation a “bodily infirmity”. Thus the condition is within the precise terms of the excepting clause, and there is no testimony to the contrary.
It cannot be said that these doctors did not choose their words carefully, because their description of the deceased’s condition shows that its characteristics were such as must have been contemplated by the term “infirmity of body” as used in the policy, whether those terms be judged by medical, or lay, or any other standards. Dr. Call testified:
“Q. In ordinary life he would do it •without an opiate? A. That’s right.
“Q. His action during this operation ■and subsequent was no different than in ■ordinary life? A. That is correct.
“Q. This could have happened in bed any night? A. Or walking down the street.
“Q. It was in no way due to the fact that he was in the hospital? A. He was quite a snorer in an operation or not in an operation.
“Q. His coughing and snoring was no different? A. No different except his condition was weakened by reason of his being a sick man.
“Q. Then you think this happened because of his weakened condition? A. Sure.
“Q. So after all, Doctor, the contributing cause was by reason of the weakened condition of bodily infirmity, by reason of his condition at that time? A. That’S right.”
Dr. Brothers testified:
“Q. Doctor Brothers, will you give us your opinion based upon the facts as produced here, which are available to you in this matter, as to whether or not this death would have been likely to occur under the same conditions, of extra-ordinary snoring and coughing, regardless of whether the operation had been performed or not?
“Mr. Merrill: Objected to as not proper, there is no foundation and it calls for a conclusion and therefore it is incompetent.
“The Court: He may answer.
“A. Yes, sir, I think he probably would have died just the same whether he would have been operated at all.”
All of this uncontradicted testimony shows that we have here a condition of “infirmity of body” as understood in the common speech of men. A condition where an ordinary coughing spell may cause an embolus and death is the sort of thing for which the company declined to furnish the deceased with double indemnity.
This is the case of “a morbid or abnormal condition of such quality or degree that in its natural and probable develop *540 ment it may be expected to be a source of mischief, in which event it may fairly be described as a disease or an infirmity,” referred to by Cardozo, C. J., in Silverstein v. Metropolitan Life Ins. Co., 254 N.Y. 81 , 171 N.E. 914, 915 .
In that case, death caused in part by the rupturing of a benign ulcer was held covered by the policy only because the benign ulcer could not be characterized as a disease or an infirmity. In the Browning case, 94 Utah 532 , 72 P.2d 1060 , Id., 94 Utah, 570 , 80 P.2d 348, 350 , the determination was on a finding, 80 P.2d page 353, that there was no evidence that the insured was suffering from “disease, bodily infirmity or bacterial infection”. In these cases, as in the Rauert case, supra, it is clear that had the finding been otherwise, a different result would have been required. But in the case now before us the policy expressly excludes cases of death, “directly or indirectly, from infirmity of mind or body,” and the only evidence is that the death resulted from a condition described by competent medical authority as “bodily infirmity”.
As for the statement that “the insured did not die of thrombosis, but of embolism. A thrombus and an embolus are not the same thing,” I cannot see anything in it. Since, as shown hereafter, the insured’s doctor testified that he died from embolism, caused by the thrombosis, the distinction sought to be made is without a legal difference, — it is a mere exercise in semantics, emphasizing the effect rather than the cause.
“When a written contract is clear and unequivocal, its meaning must be determined by its contents alone.” Tapper v. Idaho Irr. Co., 36- Idaho 78, 210 P. 591 . The facts here come so squarely within the terms of the excluding clause, that I think it is not permitted to us to write a new contract for the parties under the guise of applying a rule of “strict construction” to language that is perfectly plain.
And where a plaintiff’s own evidence discloses a complete defense, the fact that the defense is an affirmative one, with burden of proof on defendant, is immaterial. Draper v. City of Burley, 53 Idaho 530 , 26 P.2d 128 .
Plaintiff’s own medical testimony was that the patient was given a sedative. This caused him to go to sleep. Then he snored, the snoring causing the coughing and heavy, breathing which broke loose the embolus. Dr. Call testified: “The cause of the death was acute embolism, pulmonary' embolism which was caused by violent action to break the embolism from the thrombosis.” Dr. Brothers testified:
“Q. Do you mean to say, Doctor, that in your opinion Harry Wilson would have died at five o’clock in the morning April 8, 1947, whether there had been any operation or not? A. He might have.
“Q. It is your opinion that he would? A. I think he would.
“Q. From what do you think he would have died? A. Embolism.
“Q. What would have caused it? A. Thrombosis.
“Q. When did he have thrombosis ? A. I think he had it before this operation.”
That the thrombosis was the active and efficient cause of the death is thus made apparent. The hypodermic administration of a sedative was merely the occasion which started the snoring, — it was merely an incidental cause. In any event, the efficient, active cause of death was the bodily infirmity.
In the face of the clear, explicit, uncontradicted medical testimony just quoted, I think it cannot be said, as does the majority, that the Idaho court “would regard the untoward mishap in this instance as the inducing and sole| proximate cause of the loss.” I think the Idaho court would stick to the facts as the doctors related them. Courts are not wont to set themselves up as empowered to reverse the findings of qualified medical experts.
The Idaho case of O’Neil v. New York Life Ins. Co., 65 Idaho 722 , 152 P.2d 707 , has no resemblance to any of the facts here. I do not know why it should be cited in the court’s opinion unless it be in support of the notion that no matter what *541 restrictive or excluding language is written into a contract of insurance, the Supreme Court of Idaho will, by a process of “strict construction”, read it out of the policy. I think the Supreme Court of Idaho would be the first to repudiate any such suggestion, just as I think the time will come when that court will repudiate this court’s rewriting of the parties’ contract under the guise of “strict construction”. It would not be the first time that has happened to this court. In Order of United Commercial Travelers v. Groves, 9 Cir., 130 F.2d 863 , a case arising under Washington law, this court, although urged to do so, declined to note the distinctive language of an accident policy. In the later case of Evans v. Metropolitan Life Ins. Co., 26 Wash.2d 594 , 174 P.2d 961 , the Washington Supreme Court drew the distinction which this court had previously refused to consider, quoting at length from many cases, including First National Bank v. Equitable Life Assur. Soc., 225 Ala. 586 , 144 So. 451, 454 , in which it was said: “It seems, therefore, the great weight of authority supports the views expressed in our cases, viz. where there is special provision directing the attention of the insured to disease or bodily infirmity, and expressly excluding liability in case of death resulting directly or indirectly therefrom, some effect must be given to such provision.”
What the Washington court held is stated in its quotation from Budzinski v. Metropolitan Life Ins. Co., 287 Mich. 495 , 283 N.W. 662 , 286 N.W. 842 , as follows:
“The court will not make a new contract for parties under the guise of a construction of the contract, when in doing so it will ignore the plain meaning of words. * * *
“From my examination of clause two of the policies, I am constrained to hold that there is no liability in the instant cases as bodily infirmity or disease was a contributing cause of the assured’s death. The policies are unambiguous and admit of no other construction.” [ 26 Wash.2d 594 , 174 P.2d 978 ]
In construing contracts generally, the Idaho court has many times used almost identical language concerning the unambiguous terms of written contracts. Thus, in Weed v. Idaho Copper Co., 51 Idaho 737 , 10 P.2d 613, 619 , the court said: “The contract is to be given effect according to its clear and unambiguous terms, and this court may not substitute or write a new contract for the parties.” I think, therefore, that whenever it gets a case like tais before it, it will make this decision another orphan like that in Order of United Commercial Travelers, supra. .
It is inconceivable to me that the Idaho court would hold otherwise, in view of the plain implications of its decision in the Rauert case, supra.
I think the judgment should be reversed.
. Dr. Brothers, the other physician called by plaintiff, testified on this point as follows:
“Q. You speak of embolism caused by thrombosis, now, what causes the thrombus? A. It is caused by different things; prior surgery; injuries; infection of the vessel'wails; foreign material in the blood stream; endocarditis.
“Q. And everyone of those go back *539 to a bodily infirmity? A. Injuries and prior operations, you would not call them diseases.
“Q. But it is a bodily infirmity? A. Yes, it is.”