Ætna Life Ins. v. Brand
265 F. 6
2d Cir.
1920
Check Treatment
HOUGH, Circuit Judge

(after stating the facts as above). Plaintiff in error complains that the remark of the trial judge last above quoted gave the jury the impression that hernia is not a disease. No such inference can be drawn; it was certainly true that no evidence had been given showing that Brand’s hernia made him “sick,” and we find no injurious error in the implication suggested. This is because, if we assume that hernia is or may he a disease (again something as to which no satisfactory evidence was given) Brand’s hernia was not a cause which produced or contributed to the pricking of his artery, but a condition which exposed him to that possibility. Considering this record, there is no evidence from which any jury could have found as a fact that Brand’s hernia caused the pricking of his artery. Such a verdict would have been as far-fetched as to find that, had the ceiling fallen while he lay strapped to the operating tabic, the hernia that brought him to the table caused or contributed to the injury produced by the falling plaster.

We have no doubt that the bodily injury was effected solely by violen! and external means. That the degree of violence is immaterial is fundamental, and even an expected and usual force may he violent enough to injure. Shanberg v. Fidelity, etc., Co., 158 Fed. 5, 85 C. C. A. 343, 19 L. R. A. (N. S.) 1206, and see Western, etc., Co. v. *8Smith, 85 Fed. 401, 29 C. C. A. 223, 40 L. R. A. 653, where the only violence was that of a new and stiff shoe. The point in this case is whether, on the_ evidence as established by the verdict, Brand’s leg was lost by accidental means, and since the jury has established the causal connection between the pricked artery and the lost leg, the question becomes this: Was the surgeon’s puncture accidental?

Every suggested, and we think every conceivable, objection to answering this question in the affirmative, is summed up in the perfectly true statement that the surgeon put his needle just where it ought to have gone, and -injury resulted solely because the artery was where it ought not to have been. At least one element of this statement is immaterial, for it plainly makes no difference that the impact or force preceding the injury is designed by the person injured. Lewis v. Ocean, etc., Co., 224 N. Y. 18, 120 N. E. 56; Lewis v. Iowa, etc., Ass’n, 248 Fed. 602 — litigations which arose out of the same occurrence. It may be assumed that the injurious result is never designed or intended, but it has frequently been held that, if such result is the natural or reasonably to be expected consequence of conditions voluntarily assumed, the result-may be an accident, but the producing means cannot be called accidental. This ruling probably justifies decisions such as Appel v. Ætna, etc., Co., 180 N. Y. 514, 72 N. E. 1139, affirming 86 App. Div. 83, 83 N. Y. Supp. 238; Feder v. Iowa, etc., Ass’n, 107 Iowa, 538, 78 N. W. 252, 43 L. R. A. 693, 70 Am. St. Rep. 212; Hastings v. Travelers’, etc., Co. (C. C.) 190 Fed. 259; and Fidelity, etc., Co. v. Stacey’s Executors, 143 Fed. 271, 74 C. C. A. 409, 5 L. R. A. (N. S.) 657, 6 Ann. Cas. 955. It has, however, also been held that, where the injurious result is caused by an act voluntarily performed by the party injured, the means cannot be called accidental. This ruling was applied in the case of one whose body was abnormal in Smith v. Travelers, etc., Co., 219 Mass. 147, 106 N. E. 607, L. R. A. 1915B, 872, a case more closely resembling in its facts the litigation at bar than any other called to our attention or known to us. It is plainly true, and all the cases agree, that in construing this clause, so long found in accident insurancé policies, it is the cause and not the consequence that must be regarded in fixing, liability; but we are unahle to perceive any reason why one causal element may not be found in the peculiarities, unknown to the sufferer, of his own body.

It is to he remembered that the policy contains no exception against men with misplaced arteries or other corporeal peculiarities, and the crucial question is not changed by Brand’s singular configuration; the inquiry still is: What is meant by the word “accidental,” and will its definition cover this incident? For this court the word is authoritively defined in Mutual, etc., Ass’n v. Barry, 131 U. S. at 121, 9 Sup. Ct. 755, 33 L. Ed. 60, it has received elaborate consideration from San-born, J.; in Western, etc., Ass’n v. Smith, supra, and that the word must be taken in the usage of the average man and not of the scientist has recently been enforced by Cardozo, J., in Lewis v. Ocean, etc., Co., 224 N. Y. at 20, 120 N. E. 56. For this case the important words of the authoritative definition of “accidental” are that—

*9“If in tlie act which precedes the injury something unforeseen, unexpected, unusual occurs, which produces the injury, then the injury has resulted through accidental means.”

The thing that was unexpected and unusual in this instance was the perhaps congenital misplacement of an artery. We think that this clement of the act of sewing up the surgeon’s cut was, within the definition, as truly accidental as would have been the case had the surgeon’s needle broken.

We conclude that on reason we cannot follow the authority of Smith v. Travelers’, etc., Co., supra, and that this case is governed by Mutual, etc., Co. v. Barry, supra.

Judgment affirmed, with costs.