Griswold v. Metropolitan Life Insurance

Moulton, J. The plaintiff is the beneficiary under a policy of accident insurance, issued by the defendant, insuring her late husband, James H. Griswold, against “the results of bodily injuries sustained while this policy is in force and caused directly and independently of all other causes by violent and accidental means,” and providing also that the policy should not cover death caused wholly or partly by infection “excepting only septic infection of and through a visible wound caused directly and independently of all other causes by violent and accidental means.” Verdict and judgment below were for the plaintiff, and the cause is before us on the defendant’s exceptions. At the close of the evidence, the defendant moved for a directed verdict, which was denied subject to exception. The several grounds for the motion may be epitomized by saying that it was alleged that there was no evidence tending to show that the death of the insured was caused from septic infection of and through a visible wound caused directly and independently of all other causes by violent and accidental means. That the insured died of septic infection is not questioned. The dispute concerns the nature and cause of the in *369 jury, and the cause of the subsequent infection and death. As to these matters the evidence, taken most favorably for the plaintiff, tended to show the following: On Friday, April 28, 1933, the insured was chopping kindling wood at a chopping block some thirty to forty feet from the house. A witness, who observed him through a window, testified that, as he was chopping, a stick of wood flew up, and it “looked as though it hit him in the face.” The insured immediately came into the house and asked for a clean cloth, which he took and held against the junction of his lip and nose, near the opening of his nostril, and when he took the cloth away there were spots of blood upon it. The plaintiff did not look at the insured’s lip, because he would not let her do so, saying that it was nothing. But from this testimony the jury would be justified in finding that there was an abrasion of the skin which permitted the blood to escape, and hence a visible wound, caused by the impact of the stick. On the following Tuesday the insured complained of pain at the base of his nose. Swelling appeared at the spot where he had held the cloth. A physician who was consulted on the Wednesday, found an abrasion, at the junction of the membranous tissue of the nose and lip, containing a drop or two of pus. The swelling rapidly increased and spread until his face became discolored and swollen beyond recognition. Pains developed in his side and back, along with very high temperature. He was taken to the hospital and nourishment administered through a tube, because he could not open his mouth. He died of acute septicaemia on Wednesday, May 10. The infection was the usual type that is introduced into the body only where there is a break in the skin, and, according to an expert, it was extremely probable that it had been introduced by and through an abrasion at the nose suffered on April 28. Upon this evidence it was permissible for the jury to find that the septic infection was “of and through a visible wound,” as provided in the policy. It is true that there was evidence, on the part of the defendant, tending to show that the insured had had a boil in his nose some eight weeks before the accident, and that the infection might have been caused by this or some other means, but the weight of the evidence is not for consideration upon this question; it is enough if there is evidence fairly and reasonably tending to support the plaintiff’s claim, and the effect of modifying *370 evidence is to be excluded. Ste. Marie v. Wells, 93 Vt. 398, 399, 108 Atl. 270. We come now to the question whether it can be said that the injury was caused by violent and accidental means. That it was violent seems beyond question, and is not disputed, but the defendant makes the point that, since the act of the insured in chopping the wood was voluntary and intentional, and nothing appeared to show that it was not performed exactly as intended, with no slip or mishap, the means were not accidental, although the result might be so described. This is the first time that this question has been raised before us, and a somewhat extended examination of the decisions in other jurisdictions will be profitable. The leading case, to which practically all the authorities refer, is U. S. Mutual Accident Association v. Barry, 131 U. S. 100, 33 L. ed. 60, 67, 9 Sup. Ct. 755, 762, wherein the rule is thus stated: “If a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result affected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual, occurs which produces the injury, then the injury has resulted through accidental means.” From this statement of the law two diverse and irreconcilable views have developed. It is. said in Caldwell v. Travelers’ Ins. Co., 305 Mo. 619, 267 S. W. 907, 39 A. L. R. 56, 61: “There are two clearly defined lines of cases on this question. One holds that, where an unusual or unexpected result occurs by reason of the doing by insured of an intentional act, where no mischance, slip, or mishap occurs in doing the act itself, the ensuing injury or death is not caused through accidental means; that it must appear that the means used was accidental, and it is not enough that the result may be unusual, unexpected, or unforeseen. The other line of cases holds that, where injury or death is the unusual, unexpected, or unforeseen result of an intentional act, such injury or death is by accidental means, even though there is no proof of mishap, mischance, slip, or anything out of the ordinary in the act or event which caused such injury or death. ’ ’ The former or strict view is concisely expressed in Kimball v. Massachusetts Accident Company, 44 R. I. 264, 117 Atl. 228, 230, 24 A. L. R. 726, thus: “In determining that an injury occurred by ‘ accidental means, ’ it should appear that the cause or means governed the result and not the result the cause; and *371 that, however unexpected the result might be, no recovery could be allowed under such a provision unless there was something unexpected in the cause or means which produced the result * * # when a man is injured while doing merely what he intends to do, he is not injured by accidental means, unless the course of his action has been interrupted or deflected by some unforeseen or unintended happening.” Accidental means and accidental cause are synonymous expressions. Caldwell v. Travelers’ Ins. Co., 305 Mo. 619, 267 S. W. 907, 39 A. L. R. 56, 80; Bryant v. Continental Casualty Co., 107 Tex. 582, 182 S. W. 673, L. R. A. 1916E, 945, 949. The distinction is made between an accidental injury or death and an injury or death caused by accidental means. In Olinsky v. Railway Mail Assn., 182 Cal. 669, 189 Pac. 835, 14 A. L. R. 784, 786, it is put this way: “Where the death is the result of some act, but was not designed and not anticipated by the deceased, though it be in consequence of some act voluntarily done by him, it is accidental death. Where death is caused by some act of the deceased not designed by him, or not intentionally done by him, it is death by accidental means. In other words, accidental death is an unintended and undesigned result, arising from acts done; death by accidental means is where the result arises from acts unintentionally done.” Accordingly it has been held that death or injury did not result from accidental means, in the following cases: Where a rupture was caused in piling heavy mail sacks, Fane v. National Assn. Ry. Mail Clerks, 199 App. Div. 145, 188 N. Y. S. 222, 223; where a blood vessel was ruptured by the habitual act of shaking a furnace, Husbands v. Indiana Trav. Acc. Assn., 194 Ind. 586, 133 N. E. 130, 35 A. L. R. 1184; where a strain, resulting in death, was caused by pushing a boat into the water, and easting a seine net, Fulton v. Metropolitan Casualty Co., 19 Ga. App. 127, 91 S. E. 228, 229; where the insured pushed a table which tilted, and to prevent its fall, he seized it, injuring himself, Curry v. Federal Life Ins. Co., 221 Mo. App. 616, 287 S. W. 1053; where deceased, in using a nasal douche, drew violently into his nostril, and thus caused virulent germs to enter his brain through the middle ear, Smith v. Travelers’ Ins. Co., 219 Mass. 147, 149, 106 N. E. 607, L. R. A. 1915B, 812; where the insured, while in a feeble condition, carried his own baggage and was injured, Cobb v. Preferred Mut. Acc. Assn., 96 Ga. 818, 22 S. E. 976; when the injury was the result of voluntarily alighting *372 from a moving train, Whitehead v. Ry. Mail Assn. (C. C. A.), 269 Fed. 25, certiorari denied, 255 U. S. 570, 65 L. ed. 791, 41 Sup. Ct. 375; Southard v. Ry. Pass. Assur. Co., 34 Conn. 574, 576, 578, Fed. Cas. No. 13,182; where the injured, while enfeebled and suffering from high blood pressure, suddenly raised his head, thus causing a blood rupture of his retina, destroying the sight of one eye, Stone v. Fidelity & Casualty Co., 133 Tenn. 672, 182 S. W. 252, L. R. A. 1916D, 536, 538, Ann. Cas. 1917A, 86; where acute dilation of the heart was caused by the voluntary effort of cranking an automobile, Carswell v. Railway Mail Assn. (C. C. A.), 8 Fed. (2d) 612; where death was 'caused by eating decayed oranges, it being the duty of the insured to separate the good fruit from the bad, Martin v. Interstate Business Men’s Acc. Assn., 187 Iowa, 869, 174 N. W. 577, 578; where peritonitis was caused by the movement of the muscles in riding a bicycle, Appel’s Case, 86 App. Div. 83, 83 N. Y. S. 238; where failure of a weak heart ensued from the attempt to eject a drunken man from the premises, Scarr’s Case (1905), 1 K. B. 387; where the injury was the result of the voluntary act of carrying a sack of potatoes in the usual way, Metropolitan Life Ins. Co. Landsman (Del. Super.), 165 Atl. 563, 567; where the insured ruptured his heart in assisting others in carrying a cellar door, Shanberg v. Fidelity & Casualty Co. (C. C. A.), 158 Fed. 1, 5, 9 L. R. A. (N. S.) 1206; where heart failure ensued from an attempt to lift a bale of cotton, Pledger v. Business Men’s Acc. Assn. (Tex. Civ. App.), 197 S. W. 889, 891; where heart failure was caused by the act of aiding in carrying the casket at a funeral, Rock v. Travelers’ Ins. Co., 172 Cal. 462, 156 Pac. 1029, L. R. A. 1916E, 1196; where the insured had tuberculosis, and in reaching up to close a window shutter, ruptured an artery, Feder v. Iowa State Trav. Men’s Assn., 107 Iowa, 538, 78 N. W. 252, 43 L. R. A. 693, 695, 70 A. S. R. 212; where the deceased took a cold plunge while heated, in consequence of which his heart dilated, New Amsterdam Casualty Co. v. Johnson, 91 Ohio St., 155, 110 N. E. 475, L. R. A. 1916B, 1018; where the insured injured his side while bowling, and appendicitis developed, Lehman v. Great Western Acc. Assn., 155 Iowa, 737, 133 N. W. 752, 42 L. R. A. (N. S.), 562, 567; where, in the ordinary operation of plowing, the plow struck some unforeseen obstruction, and the handle striking the insured, caused a rupture, Ogilvie v. Ætna Life Ins. Co., 189 Cal. 406, 209 Pac. 26, 26 *373 A. L. R. 116, 120. And see, among other eases, Clarkson v. Union Mut. Casualty Co., 201 Iowa, 1249, 207 N. W. 132, 133; Smouse v. Iowa Trav. Men’s Assn., 118 Iowa, 436, 92 N. W. 53, 54. On the other hand, an equal, if not a greater, number of decisions uphold the more liberal view, comprehensive statements of which are found in Western Commercial Travelers’ Assn. v. Smith (C. C. A.), 85 Fed. 401, 40 L. R. A. 653, 656, and Lickleider v. Iowa Traveling Men’s Assn., 184 Iowa, 123, 166 N. W. 363, 168 N. W. 884, 3 A. L. R. 1295, 1300, 1301. To quote from the former case: “ * * * The significance of this word ‘accidentar is best perceived by a consideration of the relation of causes to their effects. The word is descriptive of means which produce effects which are not their. natural and probable consequences. The natural consequence of means used is the consequence which ordinarily follows from their use— the result which may be reasonably anticipated from their use, and which ought to be expected. The probable consequence of the use of given means is the consequence which is more likely to follow from their use than it is to fail to follow. An effect which is the natural and probable consequence of an act or course of action is not an accident, nor is it produced by accidental means. It is either the result of actual design, or it falls under the maxim that every man must be held to intend the natural and probable consequence of his deeds. On the other hand, an effect 'which is not the natural or probable consequence of the means which produced it, an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of those means, an effect which the actor did not intend to produce and which he cannot be charged with the design of producing under the maxim to which we have adverted, is produced by accidental means. It is produced by means which were neither designed nor calculated to cause it. Such an effect is not the result of design, cannot be reasonably anticipated, is unexpected, and is produced by an unusual combination of fortuitous circumstances; in other words, it is produced by accidental means. ’ ’ And the Lickleider Case: ‘ ‘ There is, however, another alleged definition which has had a degree of judicial sanction, which ought not to be passed without notice. According to this definition, if correctly interpreted by counsel for the de *374 fen.se, an injury happening to the insured through his own voluntary act is not an accident, nor is his hurt to be attributed to accidental means — a proposition which is wholly at variance with every statement of the true rule as illustrated in the numerous authorities above cited. It may be, and it is, true that if the insured does a voluntary act, the natural, usual, and to-be-expected result of which is to bring injury upon himself, then a death so occurring is not an accident in any sense of the word, legal or colloquial, and it is only when thus limited that the rule so stated has any proper application. * * * To say that the deceased in the case at bar did just what he attempted and intended to do, that is, he attempted to remove and did remove the tire from the wheel, and therefore there was no accident or accidental means producing his injury, is to beg the whole question and to ignore the well-established meaning of words. Says Mr. Cooley in 4 Briefs on Ins. 3156: ‘Accident insurance companies do business mostly with the common people, and the term “accident” as used in these policies, should be defined according to the ordinary and usual understanding of its significance.’ It makes no difference whether the injured man or some other person voluntarily sets in motion the first of a series of events which in connected line of causation results in his injury or death. If, to use the language I have quoted, the resulting injury and violence to him ‘unexpectedly took place,’ or was an ‘unexpected result from a known cause,’ or was produced ‘without design or intention,’ or was ‘an unusual and unexpected result, attending the performance of a usual or necessary act, ’ or was an ‘ event happening without the concurrence of the will of the person by whose agency it was caused, ’ or if it was ‘caused or produced without design,’ it falls directly within the letter and spirit of the definition which has been placed upon the words by the most competent lexicographers, as well as by our most eminent jurists who have given attention thereto.” Some decisions put the rule in terms of negligence or assumption of risk on the part of the injured person, and hold him to the results which, as a reasonable man, he should have foreseen as likely to flow from his voluntary act. In a recent case (1931), Norris v. New York Life Insurance Co. (C. C. A.), 49 Fed. (2d) 62, 63, it is said (citing the Barry Case) : “The sole question to be considered here is whether the death of the *375 insured resulted directly and independently of all other causes from bodily injury effected through an accidental cause. There have been a number of decisions, on this question, by the various courts both state and federal. A study of these decisions leads us to the conclusion that the rule governing this class of cases is correctly stated to be that the cause is not accidental, if the insured, in doing what he did, should have foreseen the danger of being injured. That which cannot reasonably be expected to follow as a result of an act is accidental. In other words, an insured may not voluntarily assume the risk of that which it is apparent, or should be apparent to him, acting as a reasonable man, would result in injury or death. Unless a reasonable man could reach a different conclusion as to the probable result of his conduct, there is no question for the jury.” And in Mehaffy v. Provident Life & Acc. Ins. Co., 205 N. C. 701, 172 S. E. 331, 333: “It seems that ‘accidental means’ implies ‘means’ producing a result which is not the natural and probable consequence of such means.” See, also, 6 Cooley, Briefs on Insurance, 5234; Losleben v. California State Life Ins. Co., 133 Cal. App. 550, 24 Pac. (2d) 825, 826; Robinson v. U. S. Health & Acc. Ins. Co., 192 Ill. App. 475, 477, 478; Fidelity & Casualty Co. v. Stacey’s Exr. (C. C. A.), 143 Fed. 271, 5 L. R. A. (N. S.) 657, 661, 6 Ann. Cas. 955; Horan v. Prudential Ins. Co., 104 Pa. Super., 474, 159 Atl. 69, 70. The following decisions illustrate the application of the liberal doctrine: Where the insured, suffering from a weak heart, lifted a stove, and death ensued, it was held that, if his act was attended with an unexpected, unusual, unintended, not reasonably to be foreseen result, the death was caused by accidental means, Robinson v. U. S. Health & Acc. Ins. Co., 192 Ill. App. 475, 477, 478; where the insured voluntarily took a nonpoisonous, harmless remedy, in a manner to produce an irritating gas, but which was not expected or intended to produce harmful results, Gohlke v. Hawkeye Commercial Men’s Assn., 198 Iowa, 144, 197 N. W. 1004, 35 A. L. R. 1177, 1183; where insured intentionally took an excess dose of drug, but was not conscious that it would be harmful, Carter v. Standard Acc. Ins. Co., 65 Utah, 465, 238 Pac. 259, 41 A. L. R. 1495, 1518, 1519; Hodgson v. Preferred Acc. Ins. Co., 100 Misc. 155, 165 N. Y. S. 293, 297; where a hernia was caused by the voluntary act of pulling the front belly plugs on a locomotive engine, Inter-Ocean *376 Casualty Co. v. Jordan (1933), 227 Ala. 383, 150 So. 147, 148; where the insured dislocated a cartilage of his kneejoint in stooping to pick up a marble rolling on the floor, Hamlyn v. Crown Acc. Ins. Co., Ltd. (1893), 1 Q. B. 750, 754; where a sprain of the muscles of the back resulted from lifting heavy weights in the ordinary course of insured’s business, Horsfall v. Pacific Mut. Life Ins. Co., 32 Wash. 132, 135, 72 Pac. 1028, 63 L. R. A. 425, 98 A. S. R. 846; where the insured died from a blow received in a voluntary boxing match, his death being the improbable and unexpected result of his engaging in the match, New York Life Ins. Co. v. Gustafson (C. C. A.), 55 Fed. (2d) 236, 237, 82 A. L. R. 729; where a mail clerk ruptured a blood vessel while lifting a heavy mail sack, Young v. Railway Mail Ass’n, 126 Mo. App. 325, 103 S. W. 557, 563; a rupture from lifting a heavy timber, Montzoukos v. Mutual Ben. Ass’n, 69 Utah, 309, 254 Pac. 1005, 1007, 1008; where a surgeon in performing an operation punctured an artery, not in the natural place, in the insured’s body, Ætna Life Ins. Co. v. Brand (C. C. A.), 265 Fed. 6, 13 A. L. R. 657, 660, certiorari denied, 253 U. S. 496, 64 L. ed. 1031, 40 Sup. Ct. 587; where the insured, who had a weak heart, died from inhaling gas during the extraction of a tooth, Schleicher v. General Acc., etc., Corp., 240 Ill. App. 247, 253; where the death was the result of the use of infected dental instruments, this condition being unknown, Horton v. Travelers’ Ins. Co., 45 Cal. App. 462, 187 Pac. 1070, 1071; where the death was caused by the administration of novocaine, the deceased having had an idiosyncrasy for this drug, which was very rare and in his case unsuspected, Mutual Life Ins. Co. v. Dodge (C. C. A.), 11 Fed. (2d) 486, 59 A. L. R. 1290; where a disinfectant was improperly used upon an abrasion of the skin, Continental Casualty Co. v. Willis (C. C. A.), 28 Fed. (2d) 707, 709, 61 A. L. R. 1069; where the deceased used a septic hypodermic needle upon himself, Townsend v. Commercial Travelers’ Acc. Ass’n, 231 N. Y. 148, 131 N. E. 871, 17 A. L. R. 1001, 1004; where a substance not known to be poison was voluntarily swallowed, Woods v. Provident, etc., Co., 240 Ky. App. 398, 42 S. W. (2d) 499, 501; Zurich Gen’l Acc., etc., Co. v. Flickinger (C. C. A.), 33 Fed. (2d) 853, 854, 68 A. L. R. 161; Grosvenor v. Fidelity & Casualty Co., 102 Neb. 629, 168 N. W. 596, 597. In Fidelity & Casualty Co. v. Stacey’s Exr. (C C. A.), 143 Fed. 271, 5 L. R. A. (N. S.) 657, 661, 6 Ann. Cas. *377 955; Cory v. Woodmen Acc. Co., 333 Ill. 175, 164 N. E. 159, 162; and Mutual Life Ins. Co. v. Distretti, 159 Tenn. 138, 17 S. W. (2d) 11, tbe respective deaths were sustained in brawls in each of which the deceased was the aggressor; the death was held not to have been caused by accidental means, but upon the ground that death or bodily injury ought, under the circumstances, to have been foreseen. Other cases following this view of the law are: Francis v. International Travelers’ Ass’n (Tex. Civ. App.), 260 S. W. 938, 943; Brown v. Continental Casualty Co., 161 La. 229, 237, 108 So. 464, 45 A. L. R. 1521; Rowe v. United Commercial Trav. Assn., 186 Iowa, 454, 461, 172 N. W. 454, 4 A. L. R. 1235; Hoosier Casualty Co. v. Royster (Ind. App.), 142 N. E. 18, 19; Henderson v. Travelers’ Ins. Co., 262 Mass. 522, 160 N. E. 415, 417, 56 A. L. R. 1088; Lewis v. Ocean Acc. & Guarantee Co., 224 N. Y. 18, 120 N. E. 56, 7 A. L. R. 1129, 1130 (per Cardozo, J.) ; Railway Mail Ass’n v. Dent (C. C. A.), 213 Fed. 981, 983, L. R. A. 1915A, 314; Western Commercial Travelers’ Assn. v. Smith (C. C. A.), 85 Fed. 401, 40 L. R. A. 653; Hutton v. State Acc. Ins. Co., 267 Ill. 267, 270, 108 N. E. 296, L. R. A. 1915E, 127, Ann. Cas. 1916C, 577; Jensma v. Sun Life Assurance Co. (C. C. A.), 64 Fed. (2d) 457, 462, certiorari denied, 289 U. S. 763, 77 L. ed. 1505, 53 Sup. Ct. 795; Pope v. Prudential Ins. Co. (C. C. A.), 29 Fed. (2d) 185, 186; Rowden v. Travelers Protective Ass’n, 201 Ill. App. 295, 301, and further reference may be had to annotations, 7 A. L. R. 1131; 14 A. L. R. 788; 35 A. L. R. 1191; 42 A. L. R. 243; 45 A. L. R. 1528. Some attempt has been made to distinguish cases where poison has been taken by mistake, or where infected instruments have been used, by saying that the lack of knowledge of the dangerous quality or condition involved furnishes an accidental element in the act which constitutes the means causing the injury. But it would seem that this course of reasoning applies with equal force to the cases, considered sound by those who advocate this view, where death has resulted by an unknown weakness or other physical condition brought into fatal operation by some casual act of the deceased, and in which such death has been held not to have been caused by accidental means. The conflict in authority is well illustrated in cases where death or injury has occurred from sunstroke or heat prostration. In some of these the voluntary act of the insured in going about his business or pleasure in the heat of the sun has been con *378 sidered sufficient to deny recovery, upon the theory that the sunstroke, although unexpected, was not caused by accidental means. The most recent decision to this effect appears to be Landress v. Phoenix Mutual Life Ins. Co., 291 U. S. 491, 78 L. ed 934, 54 Sup. Ct. 491, 90 A. L. R. 1382 (but with a strong dissent by Cardozo, J.). Among others are Continental Casualty Co. v. Pittman, 145 Ga. 641, 89 S. E. 716; Pack v. Prudential Casualty Co., 170 Ky. 47, 185 S. W. 496, L. R. A. 1916E, 952, 956. But the weight of authority is the other way, and holds that death by sunstroke is caused by accidental means, although the insured has voluntarily exposed himself to the sun. Bryant v. Continental Casualty Co., 107 Tex. 582, 182 S. W. 673, L. R. A. 1916E, 945, 950; Continental Casualty Co. v. Clark, 70 Okla. 187, 173 Pac. 453, L. R. A. 1918F, 1007, 1011; Elsey v. Fidelity & Casualty Co., 187 Ind. 447, 120 N. E. 42, L. R. A. 1918F, 646, 648; Richards v. Standard Accident Ins. Co., 58 Utah, 622, 200 Pac. 1017, 17 A. L. R. 1183, 1192; Lower v. Metropolitan Life Ins. Co., 111 N. J. Law, 426, 428, 168 Atl. 592, 593; Hawkinson v. Order of United Commercial Travelers (Tex. Civ. App.), 20 S. W. (2d) 101; Higgins v. Midland Casualty Co., 281 Ill. 431, 439, 118 N. E. 11; U. S. Fidelity, etc., Co. v. Hoflinger, 185 Ark. 50, 45 S. W. (2d) 866, 867; Continental Casualty Co. v. Bruden, 178 Ark. 683, 11 S. W. (2d) 493, 61 A. L. R. 1192, 1195; and see annotations, 7 A. L. R. 1132, 17 A. L. R. 1183 (in which it is said that, by the weight of authority and apparently by the better reasoned cases, sunstroke, suffered unexpectedly, is an injury caused by accidental means), 61 A. L. R. 1197. We need not give separate consideration to those cases where the jury were permitted to infer that some slip or unintended act had taken place and become the cause of the injury. Standard Life & Acc. Ins. Co. v. Schmaltz, 66 Ark. 588, 53 S. W. 49, 74 A. S. R. 112; Bell v. State Life Ins. Co., 151 Ga. 57, 105 S. E. 846, 847, affirmed 26 Ga. App. 332, 106 S. E. 213; Maryland Casualty Co. v. Massey (C. C. A.), 38 Fed. (2d) 724, 725, 71 A. L. R. 1428; Hoosier Casualty Co. v. Royster, 196 Ind. 629, 149 N. E. 164, 42 A. L. R. 239; Atlanta Acc. Assn. v. Alexander, 104 Ga. 709, 30 S. E. 939, 42 L. R. A. 188, 189; Young v. Railway Mail Assn., 126 Mo. App. 325, 103 S. W. 557, 563. There is no claim here that any slip or mischance occurred in the act of delivering the blow of the axe in chopping the wood. *379 It will be helpful to examine the syntax of the clause stating the rule in the Barry Case, which is, as we have seen, the leading authority, and may be regarded as the foundation of the doctrine of “accidental means.” Again to quote the material part of it: “If a result is such as follows from ordinary means, voluntarily employed, in a not unusual and unexpected way, it cannot be called a result effected by accidental means.” The punctuation of this sentence is extremely important in the ascertainment of its meaning, and must not be neglected. See State v. Lapan, 101 Vt. 124, 133, 141 Atl. 686. In Arguin v. Industrial Commission, 349 Ill. 220, 181 N. E. 613, 615, and in Ætna Life Ins. Co. v. Vandecar (C. C. A.), 86 Fed. 282, 286, the statement is quoted without punctuation. In Caldwell v. Travelers’ Ins. Co., 305 Mo. 619, 267 S. W. 907, 921, 39 A. L. R. 56, 80, it is said that the words “in a not unusual and unexpected way” plainly modify the verb “employed,” and not the preceding verb “follows,” and that “If the language could possibly be made plainer, it would be by saying that, where the means which causes the injury was voluntarily employed in the usual and expected way, the resulting injury is not produced by accidental means, even though such resulting injury is entirely unusual, unexpected and unforeseen.” We cannot, however, accept this as the proper grammatical construction of the clause. It appears to ignore the commas, which separate the phrase “in a not unusual and unexpected way” from the context. If the ordinary means voluntarily employed in such a way were intended to be the test, there would be no necessity for the punctuation. We think that the phrase last quoted modifies the verb ‘ ‘ follows, ’ ’ and makes the meaning as though it were thus stated “Follows in a not unusual and unexpected way from ordinary means voluntarily employed.” Under this construction it is the logical conclusion that, where such a result follows in an unusual and unexpected way, it has been caused by accidental means. Such is the practical construction placed upon the statement of the rule by what appears to be the weight of authority. In commenting upon the Barry Case, it is said in 5 Joyce on Insurance (5th ed.) par. 2863, p. 4949: “The Court could not have intended to say more than this: that an ‘accident’ must not only be unforeseen, but must also be something which happens out of the usual course of things, something unusual, fortuitous, *380 an unusual event, effect, result, not ordinarily following the performance of an act and not naturally to be expected.” As Mr. Justice Cardozo says in his dissenting opinion in Landress v. Phoenix Mut. Life Ins. Co., supra, 291 U. S. 491, 78 L. ed. 934, 54 Sup. Ct. 461, 463, 90 A. L. R. 1382: “The attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbonian Bog.” And in Brown v. Continental Casualty Co., 161 La. 229, 108 So. 464, 466, 45 A. L. R. 1521, 1526, is this: “We do not believe that the doctrine stated, making a distinction between ‘accidental death or injury’ and ‘death or injury by accidental means,’ means that, under a policy of insurance against death or injury by accidental means, the insurance company is not liable for an accidental death or injury resulting from a voluntary act in which the insured did not intend or anticipate a fatal or injurious result.” The term “accidental means,” as used in the policy, is to be interpreted according to the usage of the average man. Wiger v. Mutual Life Ins. Co., 205 Wis. 95, 236 N. W. 534, 538; Bennett v. Travelers’ Protective Assn., 123 Neb. 31, 241 N. W. 781, 782. It is employed in its common significance of happening unexpectedly, without intention or design. Bohaker v. Travelers’ Ins. Co., 215 Mass. 32, 102 N. E. 342, 46 L. R. A. (N. S.) 543, 545. “ ‘Any unusual and unexpected event attending the performance of a usual and necessary act,’ whether the act be performed by the party injured or by another, is ordinarily and usually understood to be an event which happened by accident.” Young v. Railway Mail Ass’n, 126 Mo. App. 325, 103 S. W. 557, 562. And thus Cardozo, J., in Lewis v. Ocean Accident & Guarantee Corp., 224 N. Y. 18, 120 N. E. 56, 7 A. L. R. 1129, 1130: “Unexpected consequences have resulted from an act which seemed trivial and innocent in the doing * * *. Probably it is true to say that in the strictest sense, and dealing with the realm of physical nature, there is no such thing as an accident * * *. But our point of view in fixing the meaning of this contract must not be that of the scientist. It must be that of the average man * * *. Such a man would say that the dire result, so out of proportion to its trivial cause, was something unforeseen, unexpected, extraordinary, an unlooked-for mishap, and so an accident. This test — the one that is applied in the common speech of men — is also the test to be applied by the courts. ’ ’ Probably we may add to the above, it *381 is also true to say that every happening which in common speech we call an accident will, if traced backwards through the sequence of events, be found to have its origin in some voluntary human act. This is a reasonable mode of interpretation. Uncertainty in the significance of a term used in an insurance policy is to be resolved in favor of the insured and against the company. Stanyan v. Security Mut. Life Ins. Co., 91 Vt. 83, 86, 99 Atl. 417, L. R. A. 1917C, 350; Brink & Co. v. Merchants’, etc., Ins. Go., 49 Vt. 442, 457. “The insurer, most familiar with the subject, chooses the words of his undertaking, and it is not unjust to take them in the sense conveyed to the ordinary reader, nor to hold against him in case of real, substantial doubt. ’ ’ Railway Mail Assn. v. Dent (C. C. A.), 213 Fed. 981, 983, L. R. A. 1915A, 314, 315. If the insurer wished that the terms “accident” and “accidental means” should have different meanings the contract of insurance should give the insured warning of that fact. Travelers’ Protective Assn. v. Stephens, 185 Ark. 126, 49 S. W. (2d) 364, 366. “The very purpose of accident insurance is to protect the insured against accidents which occur when he is going about his business or attending to his work or affairs in the usual way without any thought of being injured or killed, and when there is no probability, in the ordinary course of business experience, that he will meet with accident or death. The reason why men secure accident insurance is to protect them against unforeseen and unexpected accidents that may happen in the ordinary course of their lives, and when they are pursuing in the usual way their daily vocations, or doing in the. ordinary way the things that men do in the common, everyday affairs of life. Nearly all accidents happen when people are going about their business in the usual way and are voluntarily doing the things before them to do. ’ ’ Pack v. Prudential Casualty Co., 170 Ky. 47, 185 S. W. 495, 499, L. R. A. 1916E, 952, 956. Almost the same language is found in Elsey v. Fidelity & Casually Co., 187 Ind. 447, 120 N. E. 42, L. R. A. 1918F, 646, 647. And indeed, “if an insured, at the time he applied for accident insurance, was made to understand that his right to recover would hinge upon such fine distinctions as the difference between ‘an accidental death’ and a death ‘by accidental means’ he would probably conclude that the purchase of such a policy would be a hazardous investment, and one which he ought not to *382 make.” Carter v. Standard Acc. Ins. Co., 65 Utah, 465, 238 Pac. 259, 275, 41 A. L. R. 1495; and see annotation, 17 A. L. R. 1183. Of course, the term “accidental means” is dependent for its application upon the particular facts presented. What would be an unusual, unexpected, or unforeseen consequence in some circumstances, would be the usual, the expected, and in all human probability, the foreseen result in another situation. Davilla v. Liberty Life Ins. Co., 114 Cal. App. 308, 299 Pac. 831, 833. But in the instant case the flying up of the stick, and its impact upon the face of the insured, was plainly an unforeseen, unintended and not a probable consequence of his act. It was an accident, and hence the injury was caused by accidental means. The motion for a verdict was properly denied. Indeed, there is yet another approach to the problem in this case. There are two decisions which are factually in point. In Rowden v. Travelers’ Protective Assn., 201 Ill. App. 295, the insured pulled at the limb of a tree, to get it out of the line of his vision in setting a line of fence posts. The limb broke and the insured fell backwards, sustaining injuries from which he died. It was held (page 301) that while he intended to remove the limb from his line of sight, there was no intention on his part to fall, and so the injury was caused by accidental means. In Western Commercial Travelers’ Assn. v. Smith (C. C. A.), 85 Fed. 401, 40 L. R. A. 653, death resulted from an infection in an abrasion of the skin of the foot, caused by wearing new shoes. The wearing of the shoes, said the court, was intentional, but the abrasion was not, and “it was in itself an accidental result, but it then became the cause of the further' injury, and thus was quite plainly an accidental cause.” So here, even if we apply the strict rule and say that the flying of the piece of wood was merely the accidental result of the voluntary act of chopping, still being accidental in nature, it became the cause of the blow and the consequent abrasion. Thus it became the accidental means of the injury and death. We may repeat what we have said to the effect that probably all accidental happenings can be traced through the sequence of events to some voluntary act. But this does not attach the quality of the act to every succeeding occurrence of which it is thus the origin. A hypothetical question put to a medical witness called by the plaintiff was permitted, subject to the defendant’s excep *383 tion. The objection as briefed is that it assumed that a wound or abrasion near the insured’s lip was caused on April 28, 1933, and that there was no evidence tending to support this assumption. But this objection is untenable because, as we have seen, the evidence was such that the jury would have been justified in finding that such an injury occurred upon the day mentioned. Another exception relates to the failure of the court to comply writh a request to charge, which raises the same - question which we have discussed at length in connection with the motion for a directed verdict and does not require separate treatment. Judgment affirmed.