1. This was the first grant of a new trial, and, as the verdict rendered was not demanded under the law and the facts of the case, an affirmance of this judgment necessarily results: Carter v. Dunson, 113 Ga. 374, 38 S. E. 830, and cases cited. As the effect of this affirmance is to leave the case to be tried again in the court below, it is necessary to decide such of the questions raised in the cross-bill of exceptions as relate to matters which will likely arise at the next trial: Civ. Code, sec. 5527; Holmes v. Langston, 110 Ga. 862, 36 S. E. 251 (7).

2. The plaintiff failed to make a demand for a jury trial at the first term, but such a demand was made in writing at the next succeeding term. The court submitted the case to a jury, over the objection of the defendant, and upon this ruling error is assigned. The fourteenth section of the act creating the city court of Americus is as follows: "The judge of said city court shall have power and authority to hear and determine all civil cases of which the said court has jurisdiction, and to give judgment and issue execution thereon; provided, always, that either party in any case shall be entitled to a trial by jury in said court upon entering a demand therefor by himself or his attorney in writing on or before the call of the docket at the term to which the cause is returnable, in all cases where such a party is entitled to a trial by jury under the constitution and laws of this state." Under this act the judge of the city court of Americus has authority to try without a jury all civil cases in which no demand for a jury trial is made at the first term; but he is not required to do this, if, in his discretion a jury trial is to be preferred: Central R. R. Co. v. Gleason, 69 Ga. 201 (3).

3. The present suit was brought for loss of time resulting from 124 an injury received by Thornton while riding as a passenger upon a railway train using steam as a motive power. The contract of insurance contained a stipulation indemnifying the insured against loss of time "resulting from bodily injuries effected during the term of this insurance through external, violent, and accidental means which shall, independently of all other causes, immediately and wholly disable him from transacting any and every kind of business pertaining to his occupation." It also indemnified against loss of time from partial disability under certain circumstances. The policy contained a stipulation in the following language: "This insurance shall not cover . . . . accident, nor injuries, nor disabil

ity, nor death, nor loss of limb or sight, resulting wholly or partly, directly or indirectly,.... from hernia.”

The insured was at the time of the injury, and had been for years before that time, afflicted with what is called by the medical experts who testified in the case a "reducible hernia"; and at the time of the injury this hernia was of such a character as to require the insured to wear a truss. While traveling as a passenger upon a railway train the insured arose from his seat and walked along the aisle of the car for the purpose of obtaining a drink of water, and while thus walking in the car a sudden lurch of the train threw him violently to one side and the truss which he was wearing struck against the arm of one of the seats and the blow thus received produced what is termed by the medical experts "a strangulated hernia." It was necessary, in order to relieve this strangulated hernia, that a surgical operation should be performed, and as a consequence of the injury received by the insured he was totally disabled from work for some weeks, and after this total disability ceased he was partially disabled for an additional time consisting of several weeks. Upon this state of facts the defendant contends that it is not liable to the insured, for the reason that, while the injury was a "bodily injury effected through external, violent, and accidental means," the loss of time did not result from this injury independently of all other causes, but was partly if not wholly, and indirectly if not directly, the result of the hernia which existed in the system of the insured at the time of the accident. On the other hand, the insured claims that he is entitled to recover, for the reason that the hernia which existed in his system at the time of the accident was not the proximate cause of the injury; that the injury would have 125 resulted even if he had been a perfectly sound man and altogether free from the bodily infirmity resulting from hernia; that the company is liable to him for the reason that he was injured as the result of an accident within the meaning of the policy; and that the mere fact that his injuries might have been aggravated by the existence of the hernia at the time of the injury does not defeat his right to recover under the contract. There can be no question that the insured's injuries were the result of an accident within the meaning of the policy. The question to be determined is, whether the fact that the insured had at that time a hernia existing in his system would preclude him from recovering on the policy, when the effect of the injury resulting from the accident was to change

the character of the complaint from which he was suffering from that of a reducible hernia, which seems not to be necessarily of a serious nature, to that of a strangulated hernia, which seems to be in some cases of a dangerous and in all cases of a serious nature. It seems to us that the true test to be applied, in order to determine whether there is a liability under the contract, is whether the condition of the insured in having, at the time of the accident, a reducible hernia contributed to the accident in whole or in part, directly or indirectly. If it did so contribute, the company would not be liable. But if the existence of the hernia in the system of the insured at the time of the accident did not substantially contribute wholly or partly, directly or indirectly, in bringing about the injury, but merely aggravated the consequences of the accident, then the plaintiff would be entitled to recover. If the insured had been a perfectly sound man at the date of the accident and it had resulted in producing a hernia, the company would be liable.

In Atlanta Accident Assn. v. Alexander, 104 Ga. 709, 30 S. E. 939, it was held that the insurer was not relieved from liability upon an accident policy by a clause therein providing that the policy should not cover "injuries or death resulting from or caused directly or indirectly, wholly or in part, by disease or bodily infirmity, hernia, . . . . rupture," etc., although the injury received may have produced hernia which caused the death of the insured. In that case the insured was a perfectly sound man, a blacksmith by trade, and a blow made by him with a sledge-hammer produced a strangulated hernia, from which death resulted. The ruling in that case was in substance that, under the facts, there was no injury resulting from 126 hernia, but a hernia resulting from an injury. This ruling is amply supported by authorities both English and American, some of which are cited in the opinion: See, also, 1 Cyc. Law & Pro. 263; 1 Am. & Eng. Ency. of Law, 2d ed., 318, note 1; 3 Joyce on Insurance, sec. 2833; Niblack on Accident Insurance, 2d ed., sec. 396; National Ben. Assn. v. Grauman, 107 Ind. 288, 7 N. E. 233. In construing a policy of life insurance, that interpretation is to be placed upon the words of the policy which is most favorable to the insured, and all ambiguities and doubts are to be resolved in favor of a liability against the insurer: Massachusetts Ben. Assn. v. Robinson, 104 Ga. 256 (2), 30 S. E. 918; Warwick v. Knights of Damon, 107 Ga. 121, 32 S. E. 951. And especially is this

rule of construction to be adhered to and applied in cases where the insured has prima facie established a right to recover under the terms of the policy, and the company is seeking to defeat such a liability by showing that the act complained of is within one of the exceptions reserved in the contract as a defense to an action on the policy. All such exceptions are to be construed strictly against the company and liberally in favor of the insured. Accident policies generally contain a clause the purpose of which is to relieve the insurer from responsibility in case of death or disability of the insured from disease. The language of this clause is not the same in all policies, and the determination of the question whether under such a clause the company is relieved in a particular case depends upon the exact language in which the exception is couched. The American and English Encyclopedia of Law (second edition, volume 1, page 315 et seq.), in referring to clauses of this character in policies of accident insurance, says: "The tendency of the courts, under the settled rules of construction applicable to insurance contracts, is to interpret the clause in a manner favorable to the insured, and where the accident can be considered as the proximate cause of death, although disease may have been present as a secondary cause, or where the death is the reasonable and natural consequence of the injury, although disease may have supervened, the policy is not avoided unless the exception plainly includes such case. Policies excepting 'death or disability in consequence of disease,' or 'injury happening directly or indirectly in consequence of disease, or caused wholly or in part by disease,' or injury caused by or arising from natural disease, have received interpretation in accord with the above principles; yet where the death is directly due to disease and not to accident, the exception protects the insurer."

127 In the case of Western Commercial Travelers' Assn. v. Smith, 56 U. S. App. 393, 85 Fed. 401, Sanborn, circuit judge, in referring to the question as to when an accident insurance company would be liable under a contract containing clauses similiar to those in the policy under consideration, says: "If the death was caused by a disease, without any bodily injury inflicted by external, violent, and accidental means, as in the case of the malignant pustule (Bacon v. United States Mut. Acc. Assn., 123 N. Y. 304, 20 Am. St. Rep. 748, 25 N. E. 399), and as in the case of sunstroke (Sinclair v. Maritime Pass Assur. Co., 3 El. & E. 478; Dozier v. Fidelity & C. Co.,

46 Fed. 446), the association was free from liability by the express terms of the certificate. If the deceased suffered an accident, but at the time he sustained it he was already suffering from a disease or bodily infirmity, and if the accident would not have caused his death if he had not been affected by the disease or infirmity, but he died because the accident aggravated the disease, or the disease aggravated the effects of the accident, as in the case of the insured who was subject to such a bodily infirmity that a short. run, followed by stooping, which would not have injured a healthy man, produced apoplexy (Travelers' Ins. Co. v. Selden, 42 U. S. App. 253, 78 Fed. 285, 24 C. C. A. 92), the association was exempt from liability, because the death was caused partly by disease and partly by accident. If the death was caused by bodily injuries effected by external, violent, and accidental means alone, the association was liable to pay the promised indemnity. If the death, was caused by a disease which was not the result of any bodily infirmity or disease in existence at the time of the accident, but which was itself caused by the external, violent, and accidental means which produced the bodily injury, the association was equally liable to pay the indemnity. In such a case the disease is an effect of the accident, the incidental means produced and used by the original moving cause to bring about its fatal effect, a mere link in the chain of causation between the accident and the death, and the death is attributable, not to the disease, but to the causa causans, to the accident alone: Travelers' Ins. Co. v. Robbins, 27 U. S. App. 547, 560, 561, 65 Fed. 178, 186, 12 C. C. A. 544, 552; Union Pac. Ry. Co. v. Callaghan, 12 U. S. App. 541, 550, 56 Fed. 988, 994, 6 C. C. A. 205, 210; Milwaukee etc. P. Ry. Co. v. Kellogg, 94 U. S. 469, 475; 128 National Masonic Accident Assn. v. Shryock, 36U. S. App. 658, 663, 73 Fed. 774, 776, 20 C. C. A. 3, 5."

In Lawrence v. Insurance Co., L. R. 7 Q. B. Div. 216, the policy sued on contained the following condition: "This policy insures payment only in case of injuries accidentally occurring from material and external cause operating upon the person of the insured, where such accidental injury is the direct and sole cause of death to the insured, but it does not insure in case of death arising from fits, or any disease whatsoever arising before or at the time of or following such accidental injury, whether consequent upon such accidental injury or not, and whether causing such death directly or jointly with such accidental injury." It appeared that the insured

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