stitution, because it offers this kind of acci- from such an accident must be accompanied dent insurance to the public, and attention by some bodily infirmity in the general called to the fact that the policy, as judicial-sense, and probably by disease in some form ly construed, is fair, just, and reasonable.

Cary v. Preferred Acci. Ins. Co. 127 Wis. 67, 5 L.R.A. (N.S.) 926, 115 Am. St. Rep. 997, 106 N. W. 1055, 7 Ann. Cas. 484, was an action on an accident insurance policy in which the beneficiary recovered judgment. The policy insured Cary "against the effects of bodily injury caused solely by external, violent, and accidental means." The policy provided that "if death shall result from such injury within ninety (90) days from the date thereof, the company will pay the sum of $5,000" to the beneficiaries designated in the policy. It also provided that "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." (Italics mine.) ·

The court, in the course of a clear, able, and well-considered opinion, says: "There is no controversy but that Mr. Cary sus tained an injury to his right leg which caused an abrasion of the skin, that bacteria, causing septicemia or blood poisoning, entered his system through such abrasion, and that his death resulted therefrom."

and degree, which in some measure contribute to the resulting disability or death.” (Italics mine.)

And the court concludes: "We are satisfied that the jury were well warranted in their conclusion that Mr. Cary's death resulted proximately and solely from his accidental falling on the floor." (Italics mine.)

The jury in that case found, and the court sustained the finding, that Cary's death resulted solely from the accidental injuries he received in his fall on the floor. Now, if the injury received-the abrasion of the skin-was the sole cause of death in that case, it necessarily follows that the sprained ankle in the case at bar was the sole cause of Anderson's death. And the weight of recent authorities is to the effect that where an injury is inflicted and other ailments, disorders, and infirmities resulting therefrom contribute in producing disability or death, the primary injury—the one first inflicted-is not only the proximate, but is, in law, the sole cause of such disability or death. To hold otherwise is to make the policy under consideration, and similar policies, a fraud on the public.

The case of Continental Casualty Co. v. Colvin, 77 Kan. 561, 95 Pac. 565, was an action on an accident insurance policy which provided for indemnity in case the insured should die from accidental injuries. The policy, among other things, recited:

"(1) 'In the event that said insured, while this policy is in force, shall receive personal bodily injury, which is effected directly and independently of all other causes, through external, violent and pure

sane, not included), and which causes at once total and continuous inability to engage in any labor or occupation.'

"(2) 'If, within ninety days from the date of the accident any one of the following losses shall result necessarily and solely from such injury: [Enumerating the

The court, after lucidly and somewhat elaborately discussing the meaning and application of the terms "proximately and solely," as they are used in the policy, to which discussion we invite and direct attention, makes, among others, the following observations: "The policy exempted the defendant from any liability for any injury "resulting from any poison or infection, or from anything accidentally or otherwisely accidental means (suicide, sane or intaken, administered, absorbed, or inhaled.' Exemption from liability is claimed under this provision. We have shown that the infection which produced the septicemia, which the jury found was the 'immediate cause' of death, cannot be held to be its proximate cause, and therefore it des not come within the terms of this exemp-losses.] tion. The facts as found exclude "(3) 'Where the loss is occasioned or the idea that Mr. Cary was afflicted with contributed to in any way by erysipelas, any bodily infirmity or disease other than blood poisoning or infection; then and in septicemia induced by bacterial infection all cases referred to in this paragraph B entering through the abrasion of the skin. of part III., the amount payable shall be The exemption manifestly cannot apply to one fourth of the amount which otherwise this bodily infirmity or disease, the result would be payable under this policy.' of the accident; for, if it were treated as (Italics mine.) within the exemption, then it would be In that case the insured was accidentally difficult to conceive of liability under any injured January 9th, and died March 7, circumstances under insurance against 1905. At the time of the accident he was effects of bodily injury caused solely by ex-employed as a "boiler washer's helper" by ternal, violent, and accidental means. In a railway company and continued to perthe very nature of things, injury resulting form his duties, with the exception of six

. . .'

In view that the judgment in this case is to be affirmed and the policy given a construction that makes it, in a moral and commercial, but not in a legal, sense, a cheat and a fraud, I submit that the defective state of our laws governing and regulating insurance companies that makes it possible for widows and orphans to be thus defrauded should be called to the attention of the legislature, as provided by our Constitution (art. 8, § 22). To send three-card monte sharks, promoters of pooling devices, of fake horse races, bunko steerers, and other professional crooks and grafters to the penitentiary for plying their trade, and permit an insurance company to defraud the public under the guise of honest business and fair dealing with the kind of insurance under consideration, is an unfair and unjust discrimination of the law against wrongdoers; especially in view of the fact that of the two classes of wrongdoers the insurance company is the more reprehensible, because the victims of the gamblers and professional crooks referred to are usually men who are generally, if not universally, in a certain sense wrongdoers themselves by becoming involved in the criminal transactions by which they are defrauded and robbed, whereas the victims of the insurance company are often, as in this case. either widows or orphan children entirely innocent of wrongdoing concerning the

days, until January 29th. On February sured, was, in a legal sense, the sole cause 16th, the insured underwent an operation of his death. by which it was ascertained that his chest cavity contained an accumulation of pus which was liberated and the cavity drained. The physicians who performed the operation testified in part that "such pus was caused from pus-producing germs; that the process by which these germs come in contact with the inflamed tissue is, or may be called, infection;" that "the inflammation and pus present in the cavity contributed to some extent to the death of the insured." The company denied liability on the ground that the injury was one not within the terms of the policy for the reasons: (1) It did not cause at once total and continuous disability to engage in any labor or occupation; (2) that the death of the insured was not caused "necessarily and solely from such injury;" (3) that "death was caused in part by infection." On each of these propositions the court declined to follow the strict construction contended for by the company, and affirmed the judgment, which was in favor of the plaintiff. Numerous decisions supporting the conclusions announced are cited in the opinion. The court, in the course of the opinion, says: "It is further contended that the death of the insured was not caused solely by the injury, but resulted in part by infection, by pneumonia, and other causes which, under the terms of the policy, would prevent any recovery, or at least would reduce the amount which the beneficiary was entitled to re-transactions by which they are ultimately cover to one fourth of the principal sum named in the policy. And injury may be said to be the sole producing cause of death when it stands out as the predominating factor in the production of the result. It need not be so violent and virulent as necessarily and inevitably to produce the result regardless of all other circumstances and conditions. The active efficient cause that sets in motion a train of events which bring about a result without the intervention of

any force from a new and independent source may be regarded as the direct and proximate cause. If the immediate cause of death is a disease produced wholly by an injury, the death must be attributable to the injury, and not to the disease. In this case, the insured was a strong young man in vigorous health at the time he received the injury, and his condition thereafter was clearly traceable to the injury as the effective and producing cause thereof; it must therefore, be held that the injury was the sole cause of his death." (Italics mine.)

made victims. And since the courts are unable, under the present state of the law, to give them the protection to which they are morally, but not legally, entitled, the legislature will, no doubt, when its attention is called to the matter in the manner suggested, supply the needed legislation, and justice will no longer in this particular kind of a case remain in this state a delusion and a mockery.

Gideon, J., dissenting:

It is quite apparent from the policy in question in this action that it was the object and intention of the applicant, Anderson, to provide for the payment to his beneficiary, in the event of his death by accident, of the amount provided for and stipulated in such policy. The policy purports to be an "industrial policy providing indemnity for loss of life, limb, limbs, sight or time by accidental means and for loss of time by sickness." Two distinct elements of loss are mentioned in the caption of the policy. If the construction contended for by the So, in this case, as herein before stated, company is to be adopted, then I submit under the great weight of authority, the in- that the provisions of § 6 of the "agreejury received by Peter Anderson, the in-ments" nullify not only the spirit, but, to

Evidence of other accidents. 1918B, 1016. Estoppel by, see ESTOPPEL.