SIMONS, District Judge.
This is a suit upon an accident insurance policy issued to John T. Massey, in which the plaintiff was named the beneficiary in the event of death. On the morning of February 22, 1927, the insured, while in excellent health, plucked a. hair from his nose. Thirty-six hours later evidence of infection developed, and on the 24th a pimple had formed on the base of his nose. This was given medical attention, but septicemia of a violent type had set in, and the insured died on March 1st. Blood specimens showed the presence of a germ known as the staphylococcus, a pyogenic or pus-forming germ. The insured held a policy in the Maryland Casualty Company, hereinafter referred to as the defendant, in the sum of $30',000. The policy covered death effected through accidental means, and provided that, in event of accidental death, immediate notice must be given to the insurer, and that affirmative proofs of loss must be furnished to it at its office within 90 days after the date of the loss. Upon the trial, defendant moved for a directed verdict in its behalf, and offered no evidence. The case was submitted to the jury and a verdict returned for the full amount of the poliey.
Two main questions are involved: First, was the death due to injury effected through accidental means; and second, was the defendant given immediate notice of the death and furnished with affirmative proofs of loss within the time provided for in the policy.
The insuring clause of the policy insures “against loss resulting from bodily injuries, including death resulting therefrom, effected independently and exclusively of all other causes directly through accidental means.” Part O, relating to coverage in event of death from septicemia, or blood poisoning, provides:
“Subject to its terms, limits and conditions, this poliey covers the insured in the event of death * *, * or disability from Septicemia, or blood poisoning' due directly to injuries effected as hereinbefore provided and sustained while this policy is in force.”
Among the “additional provisions” of the poliey is clause 22, which is as follows:
“This policy shall not cover accident, injury, disability, death, or other loss caused or contributed to directly or indirectly wholly or partly, by bodily or mental infirmity, ptomaines, bacterial infections (except pyogenic infections which shall oeeur simultaneously with and through an accidental cut or wound effected as hereinbefore provided), or by any other kind of diseases * * ”
[725]*725The medical testimony was to the effect that a hair is imbedded in a follicle; that the plucking of a hair will leave a tiny orifice in the skin or mucous membrane whieh may provide a port of entry for pyogenic germs into the blood stream, or the lymph stream; that staphylococcus germs are usually present upon the skin; that infection from the plucking of a hair, while not wholly unknown, is very unusual; that any injury to the skin or mucous membrane may provide a port of entry for pyogenic germs; that it is difficult for the physician in a given ease to determine the exact port of entry.
The poliey covered death from bodily injuries effected directly through accidental means. Some effort is made to interpret the poliey as covering death from all accidental injuries, however effected, in reliance upon the designation “Perfection Accident Poliey” printed upon the outside and at the top of the contract, followed by the statement that it “provides indemnity for death * * * due to accidental injuries.” It is sufficient to say that such designation is not part of the contract, that it is merely an indication of its general nature, and that the qualifying phrase, “as herein limited and provided,” is a sufficient challenge to the holder that the terms of the policy rather than any general designation are to be looked to for the measure of protection provided.
There is substantial distinction between “accidental injuries” and injuries effected through “accidental means,” or as it was put in a recent decision by this court [Pope v. Prudential Insurance Co., 29 F.(2d) 185], between accidental result and the result of an accidental cause. Conceding to the beneficiary in the Pope Case the utmost breadth of definition for the rule of liability under poliey provisions similar to those here considered, there was found to be no accidental cause to the death there involved. Stating the rule in its broadest aspect, it was in the Pope Case considered that there cannot be said to be an accidental cause of any injury when the insured or those acting with his consent did precisely what they intended to do and in the way whieh they intended, knowing that injury often did result and might be unavoidable, and where there was no slip or misstep in the performance, and where there was no ignorance of any material factor. Illustrative cases are sufficiently cited in a note to Judge Denison’s opinion in that case.
For reasons presently to. appear, we find it unnecessary to consider whether infection was a result which the insured might have known or might reasonably have anticipated would follow the voluntary plucking of a hair, nor whether his ignoranee of the presence of pyogenic germs was such ignorance of a material factor as would destroy the normal and intended character of his act. Nor do we here consider the soundness or applicability of any holding by whieh the unexpectedness or unusualness of a given accidental result is made the criterion for determining whether or not an aet whieh brought it about is an “accidental means.” It is sufficient to note that in the Pope Case, the holdings of Ætna Co. v. Brand (C. C. A.) 265 F. 6, 13 A. L. R. 657 (the case of the misplaced artery), and Mutual Co. v. Dodge (C. C. A.) 11 F.(2d) 486, 59 A. L. R. 1290 (unknown hypersusceptibility to novoeaine), were considered among decisions whieh carry the definition of “accidental means” to something of an extreme, yet might there be accepted without being applicable. We need go no further than that in relation to such phases of the rule of liability, for in the instant ease it fairly appears from the record to a majority of this court that, whatever may have been the intended character of Massey’s act, there was a slip or misstep whereby his intended act was as to the manner of its execution transformed into an unintended one. U. S. Mutual Ace. Ass’n v. Barry, 131 U. S. 100, 9 S. Ct. 755, 33 L. Ed. 60.
Massey pulled a hair from the inside of his nose, presumably at the spot where the skin of the lip meets the mucous membrane of the nostril. Septicemia resulted, followed by death. The District Judge submitted the ease to the jury, with instruction to find for plaintiff if Massey died from blood poisoning induced from his pulling a hair from his nose whieh caused a wound into whieh pyogenic germs entered at or about the tíme such wound was made. The jury so found. If Massey’s aet produced a wound by tearing or abrading the skin or membrane, certainly such wound was nob intended, and it may be reasonably presumed that infection occurred simultaneously with and through such wound. Does the record sustain the instruction of the court and the finding of the jury? We find ourselves in this respect confronted with the identical question that was before the Supreme Court in the Barry Case, supra. Dr. Barry jumped from a platform after two companions had jumped before him. They alighted safely. Dr. Barry landed on his feet, but heavily with some shock.
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SIMONS, District Judge.
This is a suit upon an accident insurance policy issued to John T. Massey, in which the plaintiff was named the beneficiary in the event of death. On the morning of February 22, 1927, the insured, while in excellent health, plucked a. hair from his nose. Thirty-six hours later evidence of infection developed, and on the 24th a pimple had formed on the base of his nose. This was given medical attention, but septicemia of a violent type had set in, and the insured died on March 1st. Blood specimens showed the presence of a germ known as the staphylococcus, a pyogenic or pus-forming germ. The insured held a policy in the Maryland Casualty Company, hereinafter referred to as the defendant, in the sum of $30',000. The policy covered death effected through accidental means, and provided that, in event of accidental death, immediate notice must be given to the insurer, and that affirmative proofs of loss must be furnished to it at its office within 90 days after the date of the loss. Upon the trial, defendant moved for a directed verdict in its behalf, and offered no evidence. The case was submitted to the jury and a verdict returned for the full amount of the poliey.
Two main questions are involved: First, was the death due to injury effected through accidental means; and second, was the defendant given immediate notice of the death and furnished with affirmative proofs of loss within the time provided for in the policy.
The insuring clause of the policy insures “against loss resulting from bodily injuries, including death resulting therefrom, effected independently and exclusively of all other causes directly through accidental means.” Part O, relating to coverage in event of death from septicemia, or blood poisoning, provides:
“Subject to its terms, limits and conditions, this poliey covers the insured in the event of death * *, * or disability from Septicemia, or blood poisoning' due directly to injuries effected as hereinbefore provided and sustained while this policy is in force.”
Among the “additional provisions” of the poliey is clause 22, which is as follows:
“This policy shall not cover accident, injury, disability, death, or other loss caused or contributed to directly or indirectly wholly or partly, by bodily or mental infirmity, ptomaines, bacterial infections (except pyogenic infections which shall oeeur simultaneously with and through an accidental cut or wound effected as hereinbefore provided), or by any other kind of diseases * * ”
[725]*725The medical testimony was to the effect that a hair is imbedded in a follicle; that the plucking of a hair will leave a tiny orifice in the skin or mucous membrane whieh may provide a port of entry for pyogenic germs into the blood stream, or the lymph stream; that staphylococcus germs are usually present upon the skin; that infection from the plucking of a hair, while not wholly unknown, is very unusual; that any injury to the skin or mucous membrane may provide a port of entry for pyogenic germs; that it is difficult for the physician in a given ease to determine the exact port of entry.
The poliey covered death from bodily injuries effected directly through accidental means. Some effort is made to interpret the poliey as covering death from all accidental injuries, however effected, in reliance upon the designation “Perfection Accident Poliey” printed upon the outside and at the top of the contract, followed by the statement that it “provides indemnity for death * * * due to accidental injuries.” It is sufficient to say that such designation is not part of the contract, that it is merely an indication of its general nature, and that the qualifying phrase, “as herein limited and provided,” is a sufficient challenge to the holder that the terms of the policy rather than any general designation are to be looked to for the measure of protection provided.
There is substantial distinction between “accidental injuries” and injuries effected through “accidental means,” or as it was put in a recent decision by this court [Pope v. Prudential Insurance Co., 29 F.(2d) 185], between accidental result and the result of an accidental cause. Conceding to the beneficiary in the Pope Case the utmost breadth of definition for the rule of liability under poliey provisions similar to those here considered, there was found to be no accidental cause to the death there involved. Stating the rule in its broadest aspect, it was in the Pope Case considered that there cannot be said to be an accidental cause of any injury when the insured or those acting with his consent did precisely what they intended to do and in the way whieh they intended, knowing that injury often did result and might be unavoidable, and where there was no slip or misstep in the performance, and where there was no ignorance of any material factor. Illustrative cases are sufficiently cited in a note to Judge Denison’s opinion in that case.
For reasons presently to. appear, we find it unnecessary to consider whether infection was a result which the insured might have known or might reasonably have anticipated would follow the voluntary plucking of a hair, nor whether his ignoranee of the presence of pyogenic germs was such ignorance of a material factor as would destroy the normal and intended character of his act. Nor do we here consider the soundness or applicability of any holding by whieh the unexpectedness or unusualness of a given accidental result is made the criterion for determining whether or not an aet whieh brought it about is an “accidental means.” It is sufficient to note that in the Pope Case, the holdings of Ætna Co. v. Brand (C. C. A.) 265 F. 6, 13 A. L. R. 657 (the case of the misplaced artery), and Mutual Co. v. Dodge (C. C. A.) 11 F.(2d) 486, 59 A. L. R. 1290 (unknown hypersusceptibility to novoeaine), were considered among decisions whieh carry the definition of “accidental means” to something of an extreme, yet might there be accepted without being applicable. We need go no further than that in relation to such phases of the rule of liability, for in the instant ease it fairly appears from the record to a majority of this court that, whatever may have been the intended character of Massey’s act, there was a slip or misstep whereby his intended act was as to the manner of its execution transformed into an unintended one. U. S. Mutual Ace. Ass’n v. Barry, 131 U. S. 100, 9 S. Ct. 755, 33 L. Ed. 60.
Massey pulled a hair from the inside of his nose, presumably at the spot where the skin of the lip meets the mucous membrane of the nostril. Septicemia resulted, followed by death. The District Judge submitted the ease to the jury, with instruction to find for plaintiff if Massey died from blood poisoning induced from his pulling a hair from his nose whieh caused a wound into whieh pyogenic germs entered at or about the tíme such wound was made. The jury so found. If Massey’s aet produced a wound by tearing or abrading the skin or membrane, certainly such wound was nob intended, and it may be reasonably presumed that infection occurred simultaneously with and through such wound. Does the record sustain the instruction of the court and the finding of the jury? We find ourselves in this respect confronted with the identical question that was before the Supreme Court in the Barry Case, supra. Dr. Barry jumped from a platform after two companions had jumped before him. They alighted safely. Dr. Barry landed on his feet, but heavily with some shock. The result was a ruptured duodenum causing his death. The theory of recovery was that there was [726]*726some mishap' in the jump whereby the intended act was in the manner of its performance transformed into an unintended one. Dr. Barry jumped after two companions had alighted safely. Mr. Massey pulled a hair from his nose after millions of persons had pulled hairs from nose or head or eyebrows without injury. Dr. McElroy for plaintiff beneficiary testified that most always an injury is required to produce a port of entry (for pyogenic germs); it is scarcely possible for the germ to enter the skin without some injury to the skin. Dr. Klewer stated that it is possible for these organisms (pyogenic germs) to get into a wound while a man is shaving, or through a scratch abrasion of any kind. The rubbing of the skin or abrading it could cause a sufficient port of entry. It is a question whether these germs will enter without breaking down or abrading the skin, and there is a difference of opinion among reputable medical men on that point. Dr. Cullings testified that it is possible to cause sufficient abrasion of the mucous membrane to make a port of entry by rubbing the nose; and also possible to cause a sufficient abrasion by cleansing the nose with a towel or wash cloth. There was also testimony, of course, that the opening into the follicle, from which the hair was removed, might be a sufficient port of entry for germs, but that sueh cases were extremely rare. We think the instruction of the court and the finding of the jury thereon within the evidence, and on this phase of the ease, were it not for conclusions reached on another point, the judgment would be affirmed.
The requirement for notice to be given immediately in the event of accidental death is by the policy qualified in the event that it is not reasonably possible to give sueh notice. In the light of the pleading setting up an excuse for failure to comply with the notice provision, the evidence introduced in support of such pleading, and the submission of the issue of fact thereby presented to the jury, with the resultant verdict for the plaintiff, we find no error in the refusal of the District Judge to give a peremptory instruction for the defendant on the ground of failure to give immediate notice of death.
The contention that affirmative proofs of loss were not furnished within the time provided in the policy presents a greater obstacle to affirmance of the judgment below. The policy provides for the furnishing of such proofs in the event of death within ninety, days after the loss. They were furnished on the ninety-first day, though substantially prepared within the period of limitation, and were returned with denial of liability because not filed within the agreed time and for other reasons. There is in relation to the requirement for proofs of loss no qualifying provision in the policy similar to the one with respect to notice. Sueh periods of limitation have been held to be valid provisions of the policy, and compliance therewith a condition precedent to its enforcement. Callen v. Massachusetts Protective Association (C. C. A.) 24 F.(2d) 694; Travelers’ Insurance Co. v. Nax (C. C. A.) 142 F. 653; Whiteside v. North American Insurance Co., 200 N. Y. 320, 93 N. E. 948, 35 L. R. A. (N. S.) 696. In fact, the law in this respect is not challenged by the plaintiff, who presents but two grounds for not applying the rule in the instant ease. It is first argued that the retention of the proofs of loss for 8 days before their return in some manner waived the contract requirement to furnish sueh proofs. Reliance is had upon Hartford Co. v. Empire Co. (C. C. A.) 30 F.(2d) 794, 802. The case is not in point. There proofs of loss were furnished, and the only question was as to their sufficiency. The trial judge instructed the jury that proper proofs were furnished; the appellate court considered the question immaterial, because the proofs were retained by the company for seven weeks and then returned with a denial of liability, and there was the further fact that a position denying liability had been taken by the company before the proofs of loss were furnished. In Continental Insurance Co. v. Fortner, 25 F.(2d) 398, this court placed no reliance upon the mere retention of proofs of loss furnished after the period of limitation, as affecting waiver.
In the present ease, the second ground relied upon by the defendant as an answer to the defense of failure to furnish proofs of loss is one based upon a claimed rule of pleading in force in the Tennessee courts. The plaintiff filed replication to the special plea of the defendant in which it sought to set up excuses for failure to furnish proofs of loss. The defendant joined issue upon these replications. Because the defendant did not demur to the replications, nor move to strike them out, it is claimed now that it admitted the sufficiency as a matter of law of the facts therein alleged and proved at the trial. This contention is not convincing nor sustained by the authorities cited.
There is no other claim of waiver of the ninety-day provision, no attack made upon its reasonableness under the statutes or the law of Tennessee, and no claim made that the plaintiff was lulled into the belief that formal proofs of loss were unnecessary so as to [727]*727create an estoppel, such as was considered in Alliance Insurance Co. v. Enders (C. C. A.) 293 P. 485.
It has been argued that in a given ease notice of death may be sufficiently formal and complete to answer all of the requirements of proofs of loss, and that in such case failure to comply with the ninety-day provision would be immaterial.' Here the record contains no exhibit of the notice, nor evidence of its contents. We can draw no inference that it went further than merely complying with the requirement of the policy as to its sufficiency “with particulars sufficient to identify the insured.” No description of. what is meant by affirmative proofs of loss or their sufficiency is contained in the policy. It is clearly contemplated, however, that proofs be made on forms supplied by the defendant, and some light is thrown upon their very minimum requirements by the provision made in ease the company failed to furnish forms. In that event, “written proofs covering the occurrence, character and extent of the loss” furnished within the time would be deemed a compliance with the policy. These are much greater requirements than those provided to be contained in the notice. The sections of the policy dealing with notice and proofs of loss are printed in the margin.1
With full appreciation of the rule that the law does not favor forfeitures, and the further rule that ambiguities in a policy will be construed strictly against the insurer who drafts it, and unfortunate as the single day’s delay may be in the instant case, we earn find no sound basis in law for striking down a provision in the contract ordinairily held valid and enforceable.
We conclude that the District Judge was in error in failing to grant the defendant’s request for a directed verdict, and the judgment below is reversed.