248 F. 602 | S.D. Iowa | 1918
“Where there is evidence that, in the act which precedes and brings about an injury causing death, something undesigned and fortuitous occurs; that is to say, where there is evidence of an element of accident in the means bringing about the injury, the verdict of a jury holding the company liable will not be disturbed on appeal.”
Were the “means” in this case accidental? That is, “unforeseen, involuntary, unexpected;” “happening by chance; unexpectedly taking place; not according to the usual course of things.” If, “in the act which precedes the injury, something unforeseen, unexpected, unusual, occurs, which produced the injury, then the injury has resulted through accidental means.” U. S. Association v. Barry, 131 U. S. 100, 9 Sup. Ct. 755, 33 L. Ed. 60.
Judge Sanborn well defines “accidental means” in Western Association v. Smith, 85 Fed. 401, 29 C. C. A. 223, 40 L. R. A. 653, as follows:
“The significance of this word ‘accidental’ is best perceived by a consideration of the relation of cansos to their effects. The word is descriptive of means which produce effects which are not their natural and probable consequences. The natural consequence of means used is the consequence which ordinarily follows from their use — the result which may be reasonably anticipated from their use, and which ought to be expected. The probable consequence of the use of given means is the consequence which is more likely to follow from their 'use than it is to fail to follow. An effect which is the natural and probable consequence of an act or course of action is not an accident, nor is it produced by accidental means. It is either the result of actual design, or it falls under the maxim that every man must be held to intend the natural and probable consequence of his deeds. On the other hand, an effect which is not the natural or probable consequence of the means which produced it, an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of these means, an effect which the actor did not intend to produce, and which he cannot be charged with (he design of producing, under the maxim to which we have adverted, is produced by accidental means. It is produced by means which were neither designed nor calculated to cause it. Such an effect is not the result of design, cannot be reasonably anticipated, is unexpected, and is produced by an unusual combination of fortuitous circumstances; in other words, it is produced by accidental means.”
“That the scarf pin used by insured in pricking his lip communicated or caused infection by being introduced into the tissues of the lip.”
Therefore there can be no dispute in the case that the pin was infected ; that it carried the cocci upon it. It is not a case of breaking
If the injury resulted from the pin alone, and there was no proof that the pin was infected, the accidental result would not be covered by this policy; but the deceased clearly used something which he did not intend to use. He used, not only the pin, but he used an infected pin — a poisoned pin. This infection was such that it could not, in the nature of things, be discovered by him without perhaps a microscopic investigation. To my mind the means were clearly accidental. A man who eats infected food, without knowledge of its infection, is doing something he did not intend to do. The eating of the food is voluntary, but the eating of the poison is not. The housewife goes to the flour bin, kneads her bread, bakes it, and serves it. Those who eat it die. It is found that the bin contains, not only flour, but arsenic. The unfortunates voluntarily ate the bread, composed of flour and arsenic. The “means,” causing death, is accidental. I see no distinction in principle between the case at bar and the numerous cases illustrated by ptomaine poisoning, and other cases of unintentional infection.
From the agreed facts it must be apparent that the wound was not caused alone by the pin, but that in its nature and character, and possibly its appearance, it was in part caused by- the cocci. The fact that the cocci entered the wound in its making, as agreed by the parties, ought not to make any difference in the construction of this provision of the contract. In any event, this being an exception to the general liability clause, if there is any doubt about it, it ought to be resolved in favor of the insured, and it is my judgment that this exception does not furnish a just or legal reason why the defendant should escape liability.. Upon the agreed facts there will be a judgment in favor of the plaintiff.
Counsel for plaintiff will prepare judgment entry and submit it to the attorneys for the defendant, who will have five days in which to file objections thereto. Such judgment entry to reserve proper exceptions.