ACCIDENT INSURANCE 539
A. week later, July 17th the insured became paralyzed and blind. He died the next day. His death was due to inflammation of the brain produced by the germ known as the staphylococcus aureus. There is little doubt that the germ came from the infected pimple. If the infection was the result of accident, the defendant is liable.
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." * * * The same thing must be true of infection caused by the puncture of a pimple. Unexpected consequences have resulted from an act which seemed trivial and innocent in the doing. Of itself, the scratch or the puncture was harm-less. Unexpectedly it drove destructive germs beneath the skin, and thereby became lethal. To the scientist who traces the origin of disease there may seem to be no accident in all this. "Probably it is true to say that in the strictest sense, and dealing with the region of physical nature, there is no such thing as an accident." Halsbury, L. C., in Brill-tons v. Turvey, L. R. 1905 A. C. 230, 233. But our point of view in fixing the meaning of this contract must not be that of the scientist. _It must be that of the average man. * * * Such a man would say that the dire result, so tragically out of proportion to its trivial cause, was something unforeseen, unexpected, extraordinary, an unlooked-for mishap, and so an accident. This test—the one that is applied in the common speech of men—is also the test to be applied by courts. * * *
The defendant argues that the puncture may not have caused the infection. But the plaintiff's experts say that in their opinion the entrance of the germs from the skin into the deeper tissues was the result of trauma. They say that trauma is almost invariably the cause of such infections. We find the signs of trauma here in the punctured wound which was visible when the physician was first consulted. The insured was an athlete in the prime of life and the fullness of health; the infection was not due, therefore, to lowered powers of resistance. The punctured wound is an adequate cause. The evidence suggests no other; at least, a jury might so find. Here, as elsewhere, the law contents itself with probabilities, and declines to wait for certainty before drawing its conclusions.
The judgment should be reversed, and a new trial granted, with costs to abide the event.
HISCOCK, C. J., and CUDDEBACK, POUND, MCLAUGHLIN and ANDREWS, .TJ., concur. CRANE, J., dissents. .Judgment reversed, etc.33
33 Another "pimple" case reaching the same result is Interstate Business Mena Assn. v. Lewis (1919) 257 Fed. 241, Comment (1920) 29 Yale L. J. 365. But where the insured rubbed a boil on his neck, infecting it and died as a re-