#### Cary, Respondent, vs. Preferred Accident Insurance Company of New York, Appellant.

*January 9*

January *30, 1906.*

*Accident insurance: LiaMlity: Exemptions: Proximate cause: Injury resulting from poison or infection: Bodily infirmity or disease.*

1. In an action on a policy insuring against the effects of bodily injury caused solely by external, violent, and accidental means, one exemption from liability contained in the policy was: “This insurance does not cover any case of disability or death whatever, except where the claimant shall furnish to the company direct and positive proof that such disability or death resulted *proximately*and solely from accidental cause.” It appeared from the evidence that the assured fell and sustained an injury to his leg which caused an abrasion of the skin, that bacteria, causing blood poisoning, entered his system through such abrasion, and that his death resulted therefrom. *Held:*

(1) The term “proximately,” employed in the contract, must be understood to have been used in its common and accepted meaning, as adopted and approved in the law under like conditions and circumstances.

(2) The jury were warranted in their conclusion that the assured’s death resulted proximately and solely from his accidental fall.

2. Responsible causation, as applied in the law, is not dependent on time, distance, or a mere succession of events.

•3. A policy insuring against accidents, exempting the insurer from any liability for any injury “resulting from any poison or infection, or from anything accidentally or otherwise taken, administered, absorbed, or inhaled,” does not exempt the insurer from liability when accidental abrasion of the sldn was the proximate cause of death, although bacterial poisoning intervened.

4. In such case the policy further exempted from liability for death “resulting either directly or indirectly, wholly or in part, from bodily infirmity or disease of any kind.” *Held,*that the exemption did not apply to bodily infirmity or disease the result of accident; and, the facts justifying the conclusion that death' resulted from accidental injury, the insurer was liable within the intent and meaning of this provision of the policy.

Appeal from a judgment of tbe circuit court for Milwaukee county: Obren T. Williams, Circuit Judge.

*Affirmed.*

*68This is an appeal from a judgment rendered upon a special verdict in favor of plaintiff for $11,694.64 and costs in an action upon a policy of accident insurance. Tbe defendant insured Eugene Cary against tbe effects of bodily injury caused solely by external, violent, and accidental means, and undertook to pay tbe insured tbe sum of $25 per week for not exceeding fifty-two weeks for a total disability for that period. Different amounts were to be paid in tbe event of tbe loss of bands or eyes, etc., or in case of permanent disability; and if death resulted from sucb an injury within ninety days from tbe date of tbe injury tbe company agreed to pay tbe beneficiary under tbe policy tbe sum of $5,000. There were special provisions regarding injuries received on railroad trains and other trains and a number of exemptions from liability. Tbe exemptions material of consideration on this appeal are given hereafter. On Wednesday, June 3, 1903, Eugene Cary, tbe insured, accidentally fell while on bis way to the bathroom in bis house, and sustained an abrasion of tbe skin on bis right leg, just above the anide. Tbe accident occurred in going down a flight of three steps in tbe hallway between bis bedroom and tbe bathroom. Immediately after tbe accident bis wife dressed the wound, which was a little bloody, with some white cloth. This dressing was renewed daily for a week, except on Sunday, and on one occasion she applied vaseline to it. On Friday she noticed that tbe wound bad changed somewhat in its appearance. It bad become red in color. On the second Wednesday, one week after tbe accident and two days before bis death, a physician first saw tbe wound, and be found that Mr. Cary was suffering from blood poisoning. Two days later, which was nine days after tbe accident, Mr, Cary died. On July 2, 1903, plaintiff gave notice of tbe claim, alleging that Mr. Cary, in “descending the steps leading to the bathroom, slipped and fell, injuring bis right leg. Inflammation set in, owjng to infection of tbe wound, which resulted in bis death on June 12, *691903.” On August 15, 1903, a *post-mortem*examination was made by physicians representing both tbe plaintiff and tbe defendant, and subsequently parts of tbe body were microscopically examined. Upon tbe trial of tbe action all tbe medical experts agreed tbat Mr. Gary died from tbe disease of septi-caemia or blood poisoning, resulting from tbe introduction of bacteria into bis body through this wound. Plaintiff avers tbat death resulted solely and proximately from the accidental fall, which produced tbe abrasion of tbe skin on tbe leg of tbe deceased. Defendant denies tbat death so resulted, and asserts tbat death resulted from causes under which tbe policy exempts it from liability, and claims tbat death resulted either from poison or infection or something accidentally or otherwise taken or absorbed, or tbat death resulted directly or indirectly, wholly or in part, from causes or conditions of bodily infirmity or disease. Tbe provisions of the policy under which these exemptions are claimed are as follows:

“(1) This insurance does not cover . . . any case of disability or death whatever, except where the claimant shall furnish to the company direct and positive proof that such disability or death resulted proximately and solely from accidental causes; (2) nor injury, fatal or nonfatal, resulting from any poison or infection, or from anything accidentally or otherwise taken, administered, absorbed, or inhaled; (3) nor death . . . nor disability resulting either directly or indirectly, wholly or in part, from any of the following acts, causes, or> conditions: . . . Bodily infirmity or disease of anv kind.”

The cause was submitted to a jury, which by special verdict found the following facts:

“(l)Did Eugene Cary, by a fall in or near his bathroom, sustain an injury to his right leg on June 3, 1903, causing an abrasion of the skin on said leg ? *Answer.*Yes. (2) If you answer the first question ‘Yes,’ then answer this question: Did the bacteria causing septicaemia, or blood poisoning, enter into the system of Eugene Cary through such abrasion of the skin? *A.*Yes. (3) Did Eugene Cary at the time of his *70death have a varicose ulcer on tbe upper part of tbe lower third of bis right leg? *A.*No. (4) If you answer tbe question ‘Yes/ then answer this question: Did tbe bacteria causing septicaemia, or blood poisoning, enter into tbe system of Eugene Cary through such varicose ulcer ? *A.*[No answer.] (5) Did tbe death of Eugene Cary result proximately and solely from bodily injury caused by external, violent, and accidental means? *A.*Yes. (6) Was there any such diseased condition of either the kidneys, the liver, or the veins of the right leg of Eugene Cary as contributed to cause his death? *A.*No. (T) Was the immediate cause of the death of Eugene Cary infection from bacteria, producing the septi-caemia aforesaid? *A.*Yes. (8) If the court should be of the opinion that the plaintiff is entitled to recover, at what sum do you assess her damages ? *A.*(by the court by consent of counsel) $11,269.64; one year and five months' interest, six per cent., $425.00 — $11,694.64.”

The court refused to direct a verdict for defendant and also denied a motion for a new trial. This is an appeal from a judgment entered in favor of plaintiff upon the special verdict.

For the appellant there was a brief by *Van Dyhe & Van*Dyhe, attorneys, and *J. H. Roemer,*of counsel, and oral argument by *Mr.*W. *D. Van Dyhe*and *Mr. Roemer.*

For the respondent there was a brief by *J. 0. Donnelly*and *Timlin &*Qlichsman, and oral argument by *Mr. Donnelly*and *Mr.*W. *H. Timlin.*

Siebeckee, J.

The defendant insured Eugene Cary for the term prescribed in the policy “against the effects of bodily injury caused solely by external, violent, and accidental means,” in the sums and upon the conditions specified, and among other things agreed that, “if death shall result from such injury within ninety (90) days from the date thereof, the said company will pay the stun of $5,000” to the beneficiaries designated in the policy. There is no controversy but that Mr. Cary sustained an injury to his right leg, which *71caused an abrasion of the skin, that bacteria, .causing septi-csemia -or blood poisoning, entered bis system through such abrasion, and that his death resulted therefrom; but there is a wide divergence between the claims of the parties as to what was the proximate cause of Mr. Cary’s death under the established facts in the case. One provision of the contract is: “This insurance does not cover . . . any case of disability or death whatever, except where the claimant shall furnish to the company direct and positive proof that such disability or death resulted proximately and solely from accidental causes.” The jury found specifically that Mr. Cary’s death resulted “proximately and solely from bodily injury caused solely by external, violent, and accidental means.” This finding is assailed upon the ground that it is impeached by the undisputed facts established by the evidence and the findings in the special verdict. These findings are, in effect, that bacteria, causing septicaemia or blood poisoning; entered Mr. Cary’s system through the abrasion of the skin caused by Mr. Cary’s accidental fall, and that his death was immediately caused by the septicaemia produced frión the infection by such bacteria. This contention involves the inquiry as to what is meant under the law of insurance by the proximate cause as applied and used by the parties to the contract. The term “proximate cause” as here employed must be understood to have been used by the parties to the contract in its common and accepted meaning, as adopted and approved in the law under like conditions and circumstances. While attempts to define it are numerous and the phraseology employed in these attempts differs in the use of terms, they all aim to express a certain and definite meaning, which has been observed and applied on many occasions in the decisions of this court. The proximate relation of cause and effect, establishing legal responsibility, implies that the result produced had its inception in some responsible agency. The difficulty lies in ascertaining the agency to which the result is legally attributable. As *72stated by tbis court, the proximate cause “is not necessarily the immediate, near, or nearest cause, but the one that acts first, whether immediate to the injury, or such injury be reached by setting other causes in motion, each in order being started naturally by the one that precedes it, and altogether constituting a complete chain or succession of events, so united to each other by a close causal connection as to form a natural whole, reaching from the first or producing cause to the final result.” *Deisenrieter v. Kraus-Merkel M. Co.*97 .Wis. 279, 288, 72 N. W. 735. To determine it we must as- - certain the cause which from its inception acts in a continuous sequence and produces the injury as a natural and probable result. It cannot be ascertained by any specific and direct test, but must be determined as any ultimate fact is inferred from evidentiary facts. If different agencies share in producing a result, it then becomes necessary to determine which is the responsible and efficient cause from which the injury proceeds, by tracing it to the active agency from whose inception the injury naturally follows, either directly or through other causes set in action by it. *Deisenrieter v. Kraus-Merkel M. Co., supra; Milwaukee & St. P. R. Co. v. Kellogg,*94 U. S. 469; 3 Joyce, Ins. ch. 60; 1 Cyc. 273.

The facts upon which the jury based their finding of the special verdict that Mr. Cary’s death resulted proximately and solely from bodily injury caused solely by external, violent, and accidental means are, in effect, that he accidentally fell and sustained an abrasion of the skin on his right leg, which wound appeared somewhat red and infiamed on the second day; that on the eighth day a physician first saw the wound and then found Mr. Cary to be suffering from blood poisoning; and that two days thereafter he died. The evidence also shows that the abrasion of the skin furnished the portal of entrance through which bacterial infection entered Mr. Cary’s system and caused the septicaemia which was the immediate cause of his death. It is urged that unless the *73■evidence establishes tbe fact that tbe bacterial infection occurred at tbe time of tbe bodily injury by tbe fall, it cannot ■be found that bis death was proxiniately and solely caused by tbe accident. As above stated, responsible causation, as applied in tbe law, is not dependent on time, distance, or a mere succession of events. If an injury is inflicted by an event, and it is found that it has set in motion all tbe succeeding agencies sharing in the result, then such event, as tbe efficient producing cause of tbe injury, is held to be tbe proximate cause of tbe injury. Under such circumstances tbe causal connection in the chain of events is shown by tbe dependence of each event for its action on tbe one preceding it, which thus form a continuous whole, with a proximate relationship established between the event which acted first through those naturally succeeding and the'point of injury. Apply this test to tbe facts before us, and it is shown that no such bacterial infection would in all probability have. occurred bad there been no abrasion of tbe skin. This leads to the inevitable inference that tbe bacterial infection and tbe resultant septicaemia were in tbe natural course of events dependent upon and set in motion by tbe abrasion of tbe skin caused by tbe fall. Tbe entry of bacteria into tbe system cannot be considered as an independent cause and as having intervened between tbe accidental fall and tbe death because of tbe fact that it was conditioned on tbe existence of tbe abrasion of tbe skin and was wholly incidental to and set in motion by it, thus making it one of tbe events in tbe chain of causation. We are satisfied that the jury were well warranted in their conclusion that Mr. Cary’s death resulted proximately and solely from bis accidental falling on tbe floor.

Tbe policy exempted tbe defendant from any liability for any injury “resulting from any poison or infection, or from anything accidentally or otherwise taken, administered, absorbed, or inhaled.” Exemption from liability is claimed *74under this provision, under tbe jury’s finding that “the immediate cause of the death of Eugene Cary [was] infection from bacteria producing the septicaemia.” This provision of the policy exempts defendant from liability in case Mr. Cary’s death *ivas caused by*poison or infection. Nothing further need be said to refute the idea that bacterial infection proximately caused his death under the terms of the policy. This provision of the policy is an exemption from liability only where the resultant injury was proximately caused in the manner specified in the provision. We have shown that the infection which produced the septicaemia, which the jury found was the “immediate cause” of death, cannot be held to be its proximate cause, and therefore it does not come within the terms of this exemption. Since the verdict negatives any claim that death was produced by poison or from anything “accidentálly or otherwise taken, administered, absorbed, or inhaled,” we need not further consider this exception. In so far as there was a conflict in the evidence on this question it has been resolved in plaintiff’s favor by the jury.

Another exemption agreed upon by the parties is that defendant should not be liable for death “resulting, either directly or indirectly, wholly or in part, from . . . bodily infirmity or disease of any kind.” The facts as found exclude the idea that Mr. Cary was afflicted with any bodily infirmity or disease other than septicaemia induced by bacterial infection entering through the abrasion of the skin. The exemption manifestly cannot apply to this bodily infirmity or disease, the result of the accident; for, if it were treated as within the exemption, then it would be difficult to conceive of liability under any circumstances under insurance against effects of bodily injury caused solely by external, violent, and accidental means. In the very nature of things injury resulting from such an accident must be accompanied by some bodily infirmity in the general sense, and probably by disease in some form and degree, which in some measure edntribute to *75the resulting disability or death. The utterance of the court in the recent case of *White v. Standard L. & Acc. Ins. Co.*(Minn.) 103 N. W. 735, speaking on this subject, aptly states the rule applicable to this condition of the policy:

> “If, however, the injury be the cause of the infirmity or-disease — if the disease results and springs from the injury— the company is liable, though both co-operate in causing death. The distinction made in this particular is found in that class of cases where the infirmity or disease existed in the insured at the time of injury, and, on the other hand, that class of cases where the disease was caused and brought about by the injury. And even in cases where the insured is afflicted at the time of the accident with some bodily disease, if the accidental injury be of such a nature as to cause death solely and’ independently of the disease, liability exists.”

The facts of this case justify the conclusion that Mr. Cary’s-death resulted from the injury he accidentally received, and defendant is liable within the intent and meaning of the provision of the policy. 1 Cyc. 261; *Hall v. American M. Acc. Asso.*86 Wis. 518, 57 N. W. 366; *Freeman v. Mercantile Mut. Acc. Asso.*156 Mass. 351, 30 N. E. 1013; *Manufacturers’ Acc. Ind. Co. v.*Dorgan, 58 Fed. 945, 7 C. C. A. 581; *Western Comm. Trav. Asso. v.*Smith, 85 Fed. 401, 29 C. C. A. 223; 7. *S. Mut. Acc. Asso. v.*Barry, 131 U. S. 100, 9 Sup. Ct. 755. The court properly awarded judgment on the special verdict.

*By the Court.*— Judgment affirmed.