On appeal from the Supreme Court, Essex county.
For appellant, Lum, Tamblyn & Fairlie (James Raymond Berry, of counsel).
For the respondent, Lindabury, Depue & Faulks (Walter F. Waldau, of counsel).
The opinion of the court was delivered by
LLOYD, J. The plaintiff below instituted the action in the present case to recover from the defendant the sum of $5,000 on a policy of accident insurance which provided for death benefits in case of "death resulting from bodily injuries effected directly, and independently of all other causes, from accidental means during the term of the policy." To the obligation thus assumed there was this qualification:
"The insurance under this policy shall not cover accident, injury, disability, death or other loss caused directly or indirectly, wholly or partly, by bodily or mental infirmity, bacterial infection (except pyogenic infection which shall occur with and through an accidental cut or wound) or by any other kind of disease."
Although the trial was commenced before a judge and jury, it was stipulated by counsel that its further disposition in respect to the facts and the law should be committed to the judge. The findings of the judge were in favor of the defendant, and from the judgment entered on these findings, the present appeal is taken.
The essential facts as found after reciting the terms of the contract were that the insured died on April 9th, 1932, from general septicemia due to pyogenic infection of the nose, and that
this infection entered an abrasion on the floor of the nostril caused by the decedent plucking a hair therefrom. The judge also found that the plaintiff had failed to establish that death of the insured resulted from "bodily injuries effected directly, and independently of all other causes, through accidental means."
Appellant contends that the last finding was incompatible with the earlier conclusion and that under the law there should have been a finding in favor of the plaintiff.
We think this contention is unsound. Much argument is addressed to the meaning of the word "accidental" and in this discussion it is claimed that the proofs conclusively established that the cause of death was accidental within the terms of the policy.
Examination and analysis of the proofs fully justify the conclusion of the trial judge. It was proved that a necessary result of the pulling of the hair from the nostril was a laceration or abrasion of the flesh of the nostril, and that as incident thereto septicemia might well be expected to result. It further appeared that the insured had been specifically warned by his ...