Acc1dent Insurance. — In Western Commercial Travelers' Ass'n v. Smith, (U. S. Circ. Ct. App. 85 Fed. Rep. 401), it was held that where blood poison ing results from an abrasion of the skin of a toe by a new shoe, and death follows, such death is attribu table to " bodily injuries effected by external, violent and accidental means," within the meaning of an accident insurance policy. The court said : — "Was the abrasion of the skin of the toe of the deceased the natural and probable consequence of wearing new shoes? It must be conceded that new shoes are not ordin ar1ly worn with the design of causing abrasions of the skin of the feet, and the trial court has found that the abrasion upon the toe of the deceased was produced unex pectedly, and without any design on h1s part to cause it. An abrasion of the skin certainly is not the probable conse quence of the use of new shoes; for it cannot be said to follow such use more frequently than it fails to follow it. Nor can such an abrasion be said to be the natural conse quence of wearing such shoes — the consequence which ordinarily follows, or which might be reasonably anticipated. How then can it fail to be the chance result of accidental means — means not designed or calculated to produce it? If the deceased, without design, had slipped and caused an abrasion of his skin, as he was walking down the street, or had punctured the skin of his foot by stepping on a nail in his room, or had pierced it with a nail in his shoe as he was drawing it upon his foot, there could have been no doubt that these injuries were produced by accidental means: and it is difficult to understand why an abrasion of the skin, produced unexpectedly and without design, by friction caused by wearing a new shoe, does not fall within the same category. "In McCarthy v. Insurance Co. (8 Bliss, 362, Fed. Cas. No. 8682), it is held that death from the rupture of a blood vessel caused by swinging Indian clubs for exercise may be a death from bodily injury caused by accidental means. In Martin v. Insurance Co. (1 Fost. & F., 505), a total dis ability caused by straining the back while lifting a heavy burden was declared to be a disability produced by acci dent. In Insurance Co. v. Burroughs (69 Pa. St. 43, 51 ), the court said that an accident is ' an event that takes place without one's foresight or expectation; an event which pro ceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected; chance; casu alty; contingency,' — and held that a strain of the abdom inal muscles, produced by pitching hay, which caused an inflammation that resulted in death, was an accident. Death by drowning, by involuntarily inhaling illuminating gas, or by fright, is death by accidental means (Trew v. Assurance Co., 6 Hurl. & N, 839; Mallory v. Insurance Co., 47 N. Y., 52; Paul v. Insurance Co., 112 N. Y., 472; McGlinchey v. Casualty Co., 80 Me., 251). In Insur ance Co., v. Melick (27 U. S. App., 547, 12 C. C. A. 544, and 65 Fed. Rep. 178), this court affirmed a judgment based upon a verdict that a death caused by lockjaw, which
was produced by a shot wound unexpectedly inflicted upon himself by the deceased, without design, was a death caused by bodily injury produced by accidental means alone. In Association v. Barry (131 U. S., 100, 755), three persons jumped from the same platform at the same time and place. Two of them alighted in safety, while the third suffered a stricture of the duodenum which induced a disease which caused his death. The Supreme Court affirmed a judgment founded upon a verdict that his death was the result of bodily injuries effected through external, violent and acci dental means." There is only one weak spot in this reasoning. "An abrasion of the skin certainly is not the prob able consequence of the use of new shoes," says the court. The contrary is certainly true where the wearer is a woman. A Crusade aga1nst Pork. — In Helena v. Dwyer, Arkansas Supreme Court, 39 L. R. A. 266, it was held that an ordinance making it unlawful to sell fresh pork, or sausage made thereof, between June 1 and October is unreasonable and void, since it violates the inalienable right of man to procure food. The court noticed the butter-substitute cases and dis tinguished them on the ground that a statutory pro hibition may be effective where an ordinance is not, and observed : — "Fresh pork is an article of food for general consump tion, and when sound, and free from disease, is useful and nutritious. Like all other food, it may become unwhole some when eaten to excess. The quantity eaten, under ordinary circumstances, produces the sickness when it proves unwholesome. Any food is calculated to produce that effect when eaten in the same manner. The mere sale of it is not detrimental to the public health. The fa1t that individuals may be made sick by it when imprudently eaten does not justify a city council in prohibiting the sale of it. For the same reason it could prohibit the sale of any or all other food. The most delicious food — that which is most liable to be eaten to excess — would be subject to interdic tion. If it be conceded that the city council may prohibit the sale of any article of food, the wrongful use of which Mill or may injure the health of the consumer, then they can prescribe what the citizen of the city shall eat by pro hibiting the sale of all other food. The legislature or any of its creatures has no such power. The exercise of such power, we have seen, would be a violation of the inalien able right of man to procure healthy and nutritious food by which life may be preserved and enjoyed. It would be an interference with the liberty of the citizen, which is not necessary to the protection of others or the public health, — would be an invasion of his personal rights." We expect to hear next of a legislative crusade against pie.
