500   MATURITY OF THE POLICY

< ETNA LIFE INS. CO. v. BRAND.

Circuit Court of Appeals, Second Circuit, 1920.
265 Fed. 6, 13 A. L. R. 657.

Action by Walter N. Brand against the Aetna Life Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Aetna Company issued to Brand a policy of "accident insurance," insuring him "against loss resulting directly and independently of any and all other causes from bodily injury effected solely through external, violent, and accidental means." But it was also provided: "This policy does not extend to nor cover any accidental bodily in-jury caused or contributed to, directly or indirectly, by sickness or disease."

While insured, Brand had a hernia, and his physician prescribed "a truss and an operation." He voluntarily submitted to the operation, by a surgeon whose skill is not impugned on this record. While sewing up the incision usually made in such cases, the surgeon's needle pricked the "deep epigastric artery." This artery is not ex-posed to view in such an operation as that on Brand; the surgeon used his needle in the usual way, and put it exactly where he in-tended to put it; but Brand's epigastric artery was not where such arteries are in the usual or normal man, therefore his artery was touched.

The puncture was closed, the operation for hernia concluded, and testified to as having been successful. Some time after operation, however, one of Brand's legs became gangrened, and the suffered amputation. By testimony acceptable to the jury, the reason for the gangrene was that the surgeon's needle caused a blood clot in the epigastric artery; that clot passed on and into the artery supply-

Travelers Ace. Assn. (1908) 42 Ind. App. 483, 85 N. F. 1032, Comment (1909) 18 Yale L. J. 284.

DISTINCTION BETWEEN DEATH "BY ACCIDENT" AND "BY ACCIDENTAL MEANS." A number of cases appear to turn on the distinction between death "by accident" and "by accidental means." "Where the act resulting in death or injury is such that nothing unforeseen and unintended occurs in the doing of such act and the sole unforeseen element is the effect or consequence of the act, that is, the death or the injury—such death or injury is accidental." * * * "Where an unforeseen and unusual fact or element knowledge of which would have caused the insured to perform the act in a different manner from that employed or perhaps to refrain from performing it at all, enters into the circumstances, and such fact is so connected with the means employed as to be part of the means, then such means though employed voluntarily becomes accidental." Note (1930) 78 Univ. of Pa. L. Rev. 762, 764, 766. For a further discussion of the distinction see Note (1930) 8 N. C. L. Rev. 210, Comments (1930) 25 Ill. L. Rev. 97; (1926) 14 Georgetown L. J. 409; (1929) 17 Georgetown L. J. 267; Cooper, Homer H., The Illinois Cases on Accidental Means Insurance (1931) 25 Ill. L. Rev. 673. See also Pledger v. Business Men's Assoc. (1917, Tex. Civ. App.) 197

S. W. 889 (reversed 198 S. W. 810) ; Clarkson v. Union Mut. Casualty Co. (1926)

201 Iowa 1249, 207 N. W. 132.