through external, violent and accidental means. It was not to extend "to any death or disability which may have been caused wholly or in part by bodily infirmities or disease existing prior or subsequent to the date of the policy, "nor to any case except where the injury is the proximate or sole cause of the disability or death," Held, that malignant pustule was a disease within the meaning of the term as used in the policy, and hence not insured against.

(RUGER, Ch. J., and O'BRIEN, J., dissent.)

APPEAL from judgment of the supreme court, general term, third department, affirming a judgment for plaintiff entered upon the verdict of a jury.

Wm. Bro. Smith, Richard L. Hand and Winsor B. French, for app'lt; G. L. Stedman, for resp't.

PECKHAM, J.-I think the deceased died from disease within the meaning of the language used in the policy sued upon in this action. The case of Paul v. Travellers' Ins. Co., 112 N. Y., 472; 2 N. Y. State Rep., 624, has been cited by counsel for the respondent as decisive of this case. Upon the question decided the case is conclusive and we have no disposition to alter our views as expressed therein. But upon the question of whether the deceased in this case died from disease, the case of Paul is without the slightest analogy. In that case the deceased came to his death by accidentally inhaling illuminating gas. This gas is a manufactured article, gathered into large reservoirs and thence distributed through pipes into almost every house in a city or village. or village. The deceased accidentally while asleep inhaled this gas and was suffocated. This would seem to be a plain case of death from accident, as it was found that the gas was not purposely inhaled. The death being the result of accident, it was then held that such death was caused by external and violent means within the meaning of the policy. This also seems plain enough. The gas was external and it was not inhaled voluntarily, i. e., intentionally and for the purpose of being killed thereby. It might naturally be said, as in effect it was, that death as the result of accident imports an external and violent agency as the cause.

There was no question in the Paul case that the deceased came to his death through disease; no pretense could properly be made as to death from disease in such a case. If the deceased had been asleep in a room into which a large quantity of water was poured through the accidental breaking of a water main, and in consequence thereof he had been drowned, no one would deny that the death was caused by accident and was not the result of disease, as that word is generally used among men. There is no difference in the case in principle if the death instead of being caused by water, which was visible, was caused by gas, which is invisible. In neither case would the idea even suggest itself that death was caused by disease. But in the case before us the facts are entirely different.

The deceased died, as is said and as will be here conceded, from malignant pustule. It is caused, as the plaintiff's witness testified, by the infliction upon the body of a certain kind of animal substance, contact with diseased or putrid animal matter; this acts by

producing at the point of contact with this matter a papula something like a flea bite, which rapidly becomes a vesicle, a blister-like affair, and then a pustule; this is accompanied by a great deal of swelling in the parts immediately around it, and a great deal of pain in the individual; the glands in the vicinity become infiltrated with blood and pus, and become dark red or even black in color; the neighboring glands become involved; then comes almost immediately after, or together with these signs, a great prostration, and the patient dies in a short time, five to eight days generally, the extreme limits being from twenty-four hours to sixteen days; he dies of exhaustion.

As to the cause of the pustule, the witness stated that the virus comes from the hide or hair, or wool of animals suffering from this disease; from their flesh sometimes, or it may come from the feathers of birds that have been feeding upon this peculiar kind of carrion. It may be communicated directly, that is, by the immediate contact of the individual with it, by his touching it or handling it and then bringing the matter in contact with the skin or thin mucous membrane; or it may be transported, as there are many cases known, by insects, flies, mosquitoes that have been feeding upon this, carrying it away and depositing it upon individuals. It is commonly known as malignant pustule, or charbon or anthrax; they are all synonymous terms. It has been called wool sorter's disease, because it happens among people that handle wools and hides, such as tanners, butchers and herdsmen, and those people that are engaged in business where they are brought in contact with that sort of thing.

In answer to the question, "How rare is malignant pustule?" this same witness for the plaintiff answered: "In the eastern part of this country it is pretty rare; there have been some epidemics reported in America; in the eastern part of Massachusetts, I think about twenty years ago, there were quite a number of cases among the hair workers, people that take the hair that comes from abroad and make mattresses of it."

The witness thus designates the difficulty as an epidemic, which word is so frequently used in connection with disease as almost to be synonymous therewith. It was undoubtedly so used in this instance by the witness, who thus describes malignant pustule as a disease when referring to its frequency in Massachusetts some years ago. The word epidemic would scarcely be used to express a frequent occurrence of accidents. The witness also said that he has seen it termed in one standard authority as an acute infectious disease. He said that the special poison of the disease has been found to be a particular kind of bacteria, "bacillusanthrax." The following question was put to the witness: "Is it not so, that anthrax is an acute, infectious malady which breaks out commonly in an epizootic or enzootic manner, and is not infrequently sporadic in herbivorous animals and swine, and is transmissible to a great number of other animals as well as to mankind." The answer of the witness, after some fencing, was, "Yes, I think that is correct."

N. Y. STATE REP., VOL. XXXIII. 75

Malignant pustule differs, according to this same witness, from diphtheria, small pox, or scarlet fever in the single fact that this is a particularly poisonous animal matter, and it has one particular germ from which it originates, as smallpox has another, and hydrophobia another, and the cause of the difficulty in each case is some form of bacteria, transmissible to mankind. It can be contracted through eating the flesh of animals subject to the disThe bacillus is very small, so small that it may enter in the pores of the skin, and an abrasion of the skin is not necessary, but might quicken the result. The forming of the pustule upon the skin is the product of the poison.

ease.

Another witness for the plaintiff, who was a physician, said that he understood malignant pustule to be a development of the particular bacilli in the system radiating from the point of contact. He added that the contagion might be internal as well as external, taken through the mouth or through the nose, and it is generally considered an acute, infectious disease.

Both these learned gentlemen, however, refused themselves to designate malignant pustule as a disease.

Doctor Harris defined it as "a pathological condition and succumbing of the body to the infliction of this particular poison. Doctor Bailey says he considers it as a "pathological condition following this particular inroad of this particular kind of bacilli."

We all know that "pathology," as used generally, means that part of medicine which explains the nature of diseases, their causes and symptoms. A "pathological condition" means neither more nor less than a diseased condition of the body. The insurance in this case was against bodily injuries effected through external, violent and accidental means. It was not to extend "to any death or disability which may have been caused wholly or in part by bodily infirmities or disease existing prior or subsequent to the date" of the policy, "nor to any case except where the injury is the proximate or sole cause of the disability or death." There cannot be the slightest doubt that malignant pustule is. regarded generally by those who have but the usual acquaintance with such matters, as a disease. Every particle of testimony given by the doctors called by the plaintiff shows clearly to my mind that it is so regarded generally in the medical world, and that it is only when these doctors are asked to define the case in a manner to suit their refined notions of scientific and artistic accuracy that they define the trouble as a "pathological condition of the body" in the one case, "succumbing to infliction of this particular poison," and in the other "following this particular inroad of this particular kind of bacilli."

The difference between the cause of this condition and the causes of typhoid fever, tuberculosis, small pox, scarlet fever and such like diseases, is that this particular condition is caused by different bacilli from the others, and they come in contact with the skin or enter into its pores, while in the other cases they are generally breathed in. But no abrasion of the skin is needed to produce the contact of the bacilli, and what follows from such.

contact seems to be as plainly a disease as in the case of small pox or typhoid fever.

The question then is, even assuming that some particular phy sicians refuse to call this a disease, and describe it as a pathological condition, whether it is not a disease within the meaning of that term as used in this policy? Taking all the facts testified to by these physicians of the plaintiff, including their own special description of this condition of the body, and it seems to me there can be no intelligent, rational doubt that the insured died from a disease attacking him subsequent to the issuing of the policy. The definition given by the physicians for the plaintiff as to the difficulty being a pathological condition of the body, and not a disease, is upon these facts entirely too fragile to base a recovery upon, and the distinction between a disease and a pathological condition of the body is with reference to this case much too refined for common acceptance. It seems to me clear that the meaning of the words used in the policy cover just such a case, and that the parties never intended that a cause of death which to all outward appearances, and to the world in general, was a disease, should be converted into a "pathological condition" of the body caused by an accident.

The judgment should be reversed, and a new trial ordered, costs to abide event.

O'BRIEN, J. (dissenting).—The defendant is a corporation incorporated and existing under the laws of this state for the purpose of carrying on the business of accidental or casualty insurance on the co-operative or assessment plan. On the 28th of September, 1883, Frederick J. Oaks, then a resident of the state of Massachusetts, made application for membership in the association which was accepted on that day, the applicant, at the same time, paying the necessary fee. From an inspection of the application as it appears in the record, it is evident that it was a printed blank prepared by the association and furnished to the applicant. It contemplates and provides for the issuing, by the association, and delivery to Mary J. Oaks, the mother of the applicant, of a certificate of membership in due form, expressing the contract between the parties. The mother was designated as the beneficiary to whom the sum stipulated was to be paid, in case the applicant diedby accident within the terms of the application and certificate. The association issued and delivered the certificate to the mother, whereby it agreed in consideration of the warranties and agreements made in the application for membership to accept the applicant as a member of the association, subject to all the requirements and entitled to all the benefits thereof. This paper contains the substance of an ordinary contract of insuranceupon the life of a person, and stipulates that a sum, not to exceed $5,000, to be raised by assessment upon the members, as provided for in the by-laws of the association, should be paid to the mother of the said Oaks "within sixty days after sufficient proof that said member, at any time within the continuance of membership, shall have sustained bobily injuries, effected through external, violent and accidental means within the intent

and meaning of the by-laws of the association and the conditions hereunto annexed, and such injuries alone shall have occasioned death within ninety days from the happening thereof; or if said member shall sustain bodily injuries by means as aforesaid, which shall, independently of all other causes, immediately and wholly disable and prevent him from the prosecution of any and every kind of business pertaining to the occupation under which he receives membership, then, upon satisfactory proof of such injuries, he shall be indemnified against loss of time thereby in a sum not to exceed twenty-five dollars per week for such period of continuous total disability," etc. It was also stipulated that "benefits under this certificate shall not extend * * to any bodily injury of which there shall be no external and visible sign, nor to any bodily injury happening directly or indirectly in consequence of disease; nor to any death or disability which may be caused wholly or in part by bodily infirmities or disease existing prior or subsequent to the date of this certificate; or by poison in any manner or form, nor to any case except where the injury is the proximate or sole cause of the disability or death." In the application which forms part of the contract and is to be read with the certificate, the applicant states that he was aware that the benefits secured by the certificate "will not extend death or disability caused wholly or in part * * * by taking poison in any form or manner." The insured died at Council Bluffs, in the state of Iowa, on the 21st day of March, 1884. His mother, the beneficiary named in the certificate, survived him and assigned the certificate and cause of action to the plaintiff, who recovered upon a trial of the issues before a jury and this judg ment has been affirmed at general term.

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The principal, if not the only question in the case, is whether the death of the insured was the result of accident within the meaning of the words used in the contract, or of disease or other cause not covered by the stipulations of the parties. There is no dispute as to the fact that death resulted from the effects of a malignant sore upon the lip of the insured which soon after its appearance involved the neighboring parts producing septicemia and other exhaustion. There were two theories as to what this local sore was. On the part of the plaintiff it was claimed that it was what is known as malignant pustule, while the defendant sought to establish the proposition that it was a facial carbuncle and therefore a disease, or the result of disease, within the terms or meaning of the contract. The court instructed the jury that if the sore was in fact a carbuncle that the plaintiff could not recover, but that if it was a malignant pustule produced upon the person of the deceased in the manner claimed by the plaintiff, that then the plainiff was entitled to a verdict.

The testimony of the medical experts produced by the plaintiff was to the effect that this pustule is not a disease in the strict sense of that term, but a pathological condition of the system caused by the accidental infliction of diseased or putrid animal matter, infested with bacteria or bacilli anthrax, upon the thin skin of the lip whence the bacilli multipy and are diffused through the system.