This is an appeal from a judgment in favor of the defendants-appellees in two law actions brought by the plaintiff-appellant to recover from the appellees sums alleged to be due under policies of insurance covering the death of her husband, Cornelius P. Jens-ma, from bodily injuries alleged to have been, suffered solely “through external, violent and accidental means.”
By agreement of the parties, the two causes were consolidated for trial and for hearing on the same record and briefs on appeal. The cases were tried by the court; a *458 jury trial being éxpressly waived in writing.
The appellant’s original complaint alleged that a physician “administered to the said insured a hay fever treatment (manufactured, designed and intended to be a treatment for the prevention and cure of hay fever), by injecting into the body of the insured a hay fever'pollen extract, which said extract, without the knowledge, fault or negligence of the said Samuel A. Swayne [the physician] or of the said insured, contained the spores of an anaerobic gas producing organism, and from the effects of which the said insured did die.»
During the trial, after a witness for the appellant had testified that the infection might have come from an infected garment worn by the insured, or from other sources that wiU be discussed later, the appellant obtained from the court permission to amend her complaint to read that the physician “administered or caused to be administered to the said insured a hay fever treatment' (the extract used in said treatment manufactured, designed and intended to be a treatment for the prevention and cure of hay fever) by injecting into the body of the insured a hay fever pollen extract, and in so doing or as a result of which, without the knowledge, fault or negligence on the part of the insurеd, the spore or spores of an anaerobic gas produe-ing organism entered the body of the insured, from the effect of which the insured did die,” etc. A continuance was granted to the ap-pellees that they might have an opportunity to meét thé amendment.
The appellant requested the court below to make, among others, the following eonclusion of law: “6, That plaintiff is entitled to judgment according to the prayer of her complaint.” This request was denied.
Having refused to make the findings of fact and conclusions of law requested by the appellant, and having duly allowed the appellant exceptions to such refusal, the court below entered special findings of fact and conclusions of law in each of the causes, the findings in each case being the same.
The present' controversy centers around finding No. IV, which was given as requested by the appellees, and was as follows: “On the 28th day of May, 1930, the insured Cornelius P. Jensma, caused a nurse to inject into his upper arm a serum made of pollen extract diluted with certain liquids. In making this .injection the nurse used a hypodermie syringe which was partially filled with the serum. An infection caused by an anerobic gas-producing bacillus resultеd, of which the insured died on the 31st day of May, 1930. There is no evidence respecting the time when *e infection occurred, and the court is unable to determine from the evidence as to when it did occur. The nature of the infecWm was not discovered until at least two days after the injection was made. There is no evidence sufficient to establish the source of the infection which caused the injury complained of. The plaintiff’s witness referred to all the possible sources of infection which were involved in the operation, and drew the conclusion that since an infection occurred it must hаve come from one of these sources. The sources thus referred to were the needle, the s^in^ tbe extrae*> *be of de' ®ea®eds arm, the nurses hands, and a contammated substance touching the abrasion made by f6 ejection after the operation was completed. The court finds that of these som'ees tlms suggested the pollen extract was not _,tbe source of the infection, and that the and .syringe> were a so not the source °f the infection. It finds that the source of *be “Action was either the surface of the or sof !• subsí“ce unkn,0TO whlch> after the completion of the operation, eame m oont&f T I ’ or ea“e 111 contact with the wound left by the scratching off of the small scab covering this abr™’ or came from some* source undisc osed and not suggested by either party,
The appellees concede that even in a ease of this character the appellate court has the power to consider the evidence, but insist' that such examination must not go farther ^ban- to inquire “whether there is any evideuce to support the findings and whether tbe findings support the judgment.”
This is unquestionably the law. In Dooley v. Pease,
“Where a ease is tried by the court, a jury having been waived, its findings upon questions of fact are conclusive in the courts of review, it matters not how convincing the argument that upon the evidence the findings should have been different. Stanley v. Supervisors [of Albany County],121 U. S. 547 ,7 S. Ct. 1234 ,30 L. Ed. 1000 , 1002.
“Errors alleged in the findings of the court are not subject to revision by the eircuit eourt of appeals, or by this court, if there was any evidence upon which such findings could be made. Hathaway v. National Bank,134 U. S. 498 ,10 S. Ct. 608 ,33 L. Ed. 1004 , 1006; St. Louis v. Rutz,138 U. S. 241 ,11 S. Ct. 337 ,34 L. Ed. 941 , 946; Runkle v. *459 Burnham,153 U. S. 225 ,14 S. Ct. 837 ,38 L. Ed. 691 , 697.”
See, also, 28 USCA §§ 773 and 875; Blanchard v. Commercial Bank of Tacoma (C. C. A. 9)
We will therefore test the foregoing finding No-, IV according to the rule laid down in section 875; supra; namely, “when the finding is special the review may extend to the determination of the sufficiency of the facts found to support the judgment.” We will also inquire whether, undеr the undisputed testimony, there was any substantial evidence upon which the lower* eouit might have based an assumption that the infection from which the insured died was caused by other than “external means.” Finally, we will endeavor to determine whether, as a matter of law, the finding of the lower court, on its face, does not establish the faefc that the “means” were “accidental.”
If we find that the means whereby the fatal infection was transmitted to the insured were both “external and accidental,” the appellant must be held to have made out her ease; for the appellees admit that, as tо the third element required by the policy — namely, that of “violence”- — “the authorities are uniform in holding that any degree of force is sufficient to satisfy the provisions of the policy that the means must be 'violent.’ ” This is a correct statement of the law.
First, were the means external?
It will be observed that the lower court found neither the pollen extract nor the needle and syringe to he the source of infection, but “that the source of the infection was either the surface of the deceased’s arm, or some substance unknown which, after the completion of the operation, came in contact with tho abrasion left by it, or came in contact with the wound left by the scratching off of the small scab covering this abrasion, or came from some source undisclosed and not suggested by either parly.”
In our view of the ease, it is unnecessary to rehearse the evidence here. Suffice it to say that, relative to the court’s finding as to tho pollen and the needle and syringe, the evidence on that point was conflicting, and the finding cannot be disturbed.
At this juncture the court’s finding seems to he largely one of conjecture. The suggestion concerning the infection’s originating on tho surface of the decedent’s arm appаrently was based upon a statement by .Dr. Ernest E. Laubaugh, a witness for the appellant, who answered in. the affirmative a question whether the lethal spores “might have been injected either from the surface of the arm, which was improperly or incompletely sterilized, or coming in contact with the vials, when her [the nurse’s] hands were improperly or incompletely sterilized, or from tho nurse’s hands in pinching the flesh, * ' * as well as getting in the syringe through this pollen extract.”
Similarly, there is some slight evidence to support both the other affirmative conjectures made by the court; namely, that tho source of infection was either “some substance unknown” which, after the completion of the operation, came in contact with the abrasion, or came in contact with tho wound left by the scratching off of the small scab covering this abrasion.
Dr. Laubaugh testified that, after the injection, it might he very possible for a patient to rub “into that aim some of the same spore that had remained there, or the infection of a week or many days’ standing.” Dr. Laubaugh had previously answered in the affirmative a question whether the spores could rest dormant in a shirt, even after it had been “washed in the ordinary laundering process.”
Vague as they are, all tho foregoing conjectures of the court rest upon some testimony to be found in the record. All point inescapably to infection from some external means. All are in accord with tho conclusion of Dr. Robert F. E. Stier, a witness heavily relied upon by the appellees, who declared': “It .was probably introduced from tho outside, probably after the injection.”
Wo have carefully read the record, and nowhere in it can we find evidence to warrant any assumption that tho infection could have come from within the decedent’s own body.
Finally, we comе to the closing portion of the court’s finding: “• * * Or came from some source undisclosed and not suggested by either party.”
Wo do not regard this as a finding at all. It is not based upon the record before this court.
We believe that the appellant has established, even according to the court’s finding itself, that the source of infection was external. That is all which the policy requires; it does not designate some specific typo of external source.
*460
Nor does the law itself exact such a degree of particularity in a ease of this kind. We recall the oft-quoted words of Mr. Justice Cardozo, whо, while on the appellate bench of New York, in the case of Lewis v. Ocean Accident
&
Guarantee Corp, Ltd.,
We advert next to the third and last element required of the means of infection to bring it within the coverage of the policy; namely, that it must be “accidental.”
There is a sharp conflict in tlie books as to the definition and application of the term “accidental” in connection with insurance policies of the kind that we are now considering.
The appellant thus states the view upon which she relies: “Under the authorities, it is sufficient that these virulent and poisonous germs were introduced into the body of the decedent without design or intention and without being the natural or normal result of a very simple and trivial operation performed a million times a year without such results. The contact of the germs with the tissues of the decedent, under the circumstances, constitutes a bodily injury which was accidental, unforeseen and wholly unexpected and unanticipated. * * * ”
On the other hand, the position of the appellees is thus stated in their brief: “An infection resulting from an operation voluntarily submitted to by the assured does not fall within the protection of accident policies insuring against death by violent^ external and accidental means.”
With the line of disagreement thus clearly drawn, it is our task to ascertain which view is sanctioned by the weight of authority, in the federal courts, at least.
At the outset it is well to remember that, in the language of the late Mr. Chief Justice Taft: “It is a well-settled rule in the construction of insurance policies - of this character, which the insured accepts for the purpose of covering all accidents, to construe all language used to limit the liability of the company, strongly against the company.” Manufacturers’ Accident Indemnity Co. v. Dorgan (C. C. A. 6)
See, also, Railway Mail Ass’n v. Dent (C. C. A. 8)
One of the earliest eases on the subject decided by a federal court does not seem to have been discussed in the briefs. It is the ease of McCarthy v. Travelers’ Ins. Co. (C. C. Wis.) Fed. Cas. No. 8,682, decided in 1878. In that case the poliey provided for the insurance company’s liability in the event of injuries effected through external, violent, or accidental means. It was claimed for the plaintiff that the decedent, while exercising with Indian elnbs, ruptured a blood vessel in his lungs, and that his death was the result of suсh injury. There was -evidence tending to show that one of the clubs struck .against a stove, thus causing the injury. In charging the jury, the court said: “But, if while engaged in such exercise there occurred any unforeseen, accidental or involuntary movement of the body of the deceased, which, in connection with the use of the clubs, brought about the injury; or, .if there occurred any unforeseen or any unexpected circumstance which interfered with or obstructed the usual course of such exercise, and there was thereby produced an involuntary movement, strain or wrenching, by means of which the injury was oeeasionеd, 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.”
So in the instant ease. The decedent voluntarily submitted to the injection. But the introduction of the death-dealing organisms into his system was an “unforeseen or unexpected circumstance which interfered with or obstructed the usual course of” the treatment to which he had thus voluntarily submitted.
More than one decade after the McCarthy decision, supra, the leading case on the subject was decided by the Supreme Court of the United States. We refer to United States Mutual Accident Association by Barry,
Applying the foregoing principles to the instant case, we find that on. Wednesday morning, when the injection was administered, thе insured was in good health. Immediately after the injection, there was a red spot about the size of a quarter at the site. Thursday afternoon the decedent came home from his office and complained of his arm. Thursday night the area of redness around fcho point of injection had increased to “about the size of a dollar,” and there was some swelling. The decedent was then taken to the hospital. Friday morning the area of redness had increased; there was more swelling; “there was a general toxemia”; the patient was “blue, as from poor circulation, and his arm was markedly discolored.” Friday afternoon the arm had practically doubled in size; the swelling had increased both up mid down the arm, and had gotten to the joint. At 11 o’clock that night the arm was opened and drained. The gas had extended beyond all hope of amputation'. A counteracting serum was administered immediately after the operation. The insured died the following evening, Saturday, at 8 o’clock.
The above testimony was undisputed. In. our opinion, it establishes a complete and unbroken chain of causation between the injection and the death of the insured — a result that was quite unforeseen at the time the simple hypodermic treatment was administered to him. It is true that we are unable to say at what instant of time the gas-producing organisms fastened themselves upon the victim’s tissues; hut there can be no doubt that they entered over the trail blazed by the hypodermic needle. Such entry caused blood poisoning; blood poisoning caused the death. “The cause of the cause is the cause of the effect.”
Search as we may, we can find no suggestion of any efficient or proximate cause or moans of the death other than the injection and the resulting infection. In the present advanced state of medical science, such a tragic result from a simple hay-fever injection is “unforeseen, unexpected, unusual.” As we have already intimated, we need not know at what precise instant of time, by what precise instrumentality, or through what precise avenue the deadly organisms entered the insured’s body; for it is in the very nature of ■ an accident that its exact causes should not be susceptible of mathematical demonstration.
All the substantial evidence requires the conclusion that death was the result of violent, external, and accidental means, and there is no substаntial evidence to the contrary, and therefore, the jury having been waived, judgment should have been entered for the appellant.
The appellees insist that “the death sued on must have occurred as a direct result of a bodily injury effected through accidental means, and it will not suffice if it merely appears that it was accidental in the sense that it could not reasonably have been anticipated.”
This contention was Well disposed of by Judge Sanborn in Western Commercial Travelers’ Ass’n v. Smith (C. C. A. 8)
The same principle was adhered to by Judge Parker in Mutual Life Insurance Co. v. Dodge (C. C. A. 4)
In the instant case it may likewise be observed that “death does not ordinarily follow, and cannot reasonably be anticipated” from an injection of hay fever serum. Here, too, “death was produced in the case of insurеd by means which were neither designed nor calculated to cause it.”
The following federal decisions interpret the term “accidental” in accordance with the principles discussed above: Preferred Accident Ins. Co. v. Patterson (C. C. A. 3)
While we are not undertaking to declare wherein lies the weight of authority on this question so far as the state courts are concernеd, we desire to refer to two or three well-considered and well-reasoned decisions by highest state tribunals.
In the Lewis Case, supra, Mr. Justice Cardozo used the following language: “We think there is testimony from which a jury might find that the pimple had been punctured by some instrument, and that the result of the puncture was an infection of the tissues. If that is what happened, there was an accident. We have held that infection resulting from the use of a hypodermic needle is caused by ‘accidental means.’ Bailey v. Interstate Casualty Co.,
So, here, “unexpected consequences have resulted from an act which seemed trivial and innocent in the doing,” and “of itself, the scratch or the puncture, was harmless.” While it is true that in the Lewis Case the court was considering a policy which involvеd merely accidental means, which need not be violent or external, the observations of the distinguished jurist are illuminating here.
In its opinion, the court below seemed disturbed by the fact that the appellant failed to show “just how” the fatal infection occurred. (D. C.)
In the above case the court was considering terms in a policy again virtually identical with those in the policies with which we are here concerned. The same was true in the case of Strommen v. Prudential Ins. Co. (Minn.)
Basing our opinion both upon reason and authority, we hold that the court below erred in refusing the appellant’s request for a conclusion of law to the effect that “plaintiff is entitled to judgment according to the prayer of her complaint.”
The appellant suggests that, “where a jury is waived, a proper judgment may bo entered by the Circuit Court of Appeals, without remanding the cause for further consideration by the Distriсt Court.” While there is some authority for this view, we believe that the better practice is for the appellate court to remand the ease to the lower court, with instructions, if the circumstances justify it, to the lower court to render a specific judgment.
Section 10 of the Act of March 3, 1891, c. 517, 26 Stat. 829 (28 USCA § 877), provides as follows:
That “whenever on appeal or writ of error or otherwise a case coming directly from the district court [or existing circuit court] shall be reviewed and determined in the Supreme Court the cause shall be remanded to the proper district [or circuit] court for further proceedings to* be taken in pursuance of such determination. And whenever on ap-' peal or writ of error or otherwise a case coming from a circuit court of appeals shall be reviewed and determined in the Supreme Court the cause shall be remanded by the Supreme Court to the proper district [or circuit] court for further proceedings in pursuance of such determination. Whenever on appeal or writ of error or otherwise a ease coming from a district [or circuit] court shall be reviewed and detennined in the circuit court of appeals in a easе in which the decision in the circuit court of appeals is final such cause shall be remanded to the said district court [or circuit court] for further proceedings to be there taken in pursuance of such determination.”
By section 11 of the same act (28 US *464 CA § 228 note), the entire foregoing section is made applicable to Circuit Courts of Appeal. Section 11 provides in part: “And all provisions of law now in force regulating the methods and system of review, through appeals or writs of error, shall regulate the methods and system of appeals and writs of error provided for in this act in respect of the circuit courts of appeals, including all provisions for bonds or other securities to be required and taken on such appeals and writs of error. * * * ”
See, also, Realty Acceptance Corp. v. Montgomery,
In Cleveland Rolling Mill Co. v. Rhodes,
See, also, Redfield v. Parks,
Accordingly, in each of the two consolidated cases the judgment is reversed and the cause remanded to the District Court, with instructions to enter a judgment for the ap--pellant in the sum of $5-,000, with interest from August 1, 1930.
Reversed and remanded, with instructions.