I dissent. The only question in this case is whether the insured came to her death as the result of bodily injury suffered through accidental means. The terms of the policy in this respect are plain and unambiguous. This policy, however, is dual in its engagements. It is a business women's disability policy and as such is subject to the construction placed upon it by the main opinion as having been issued by the insurer with full knowledge of the hazards of the occupation of the insured. In its other aspects the policy is an ordinary contract for indemnity for death resulting from bodily injury suffered through accidental means. It is with this second aspect of the policy that the court is now concerned. Whether the insurance company knew or did not know of the hazards of the insured's employment is of no consequence (in the absence of fraud or concealment, which are not involved here), so long as the insured came to her death as a result of bodily injury suffered through accidental means. The main opinion, it seems to me, has confused these two plainly separable and independent phases of the policy. *Page 479
I cannot agree that the entrance of a germ into the human body, unaccompanied by any abrasion or traumatic condition or physical interposition, and causing sickness and death, is a bodily injury as contemplated by the insurance policy involved in this case. The language of the policy is not unique, but follows generally the language of standard health and accident policies. The effect of the opinion in this respect is that a disease-bearing germ introduced into the respiratory tract by inhalation by anyone while in a public conveyance, on a public street, in a place of public amusement, in his own home, in fact any place where human beings are closely enough in contact to be within the zone of contagion and unaccompanied by any abrasion or trauma or physical interposition, is a bodily injury. In my opinion this holding is introducing into the realm of accident insurance a false quantity not contemplated by the insurer or insured and by judicial fiat has converted the accident insurance contract into one of health insurance if the insured survive, and into one of life insurance in case of death. If such had been the law during the days of the influenza epidemic following the close of the world war, it is not difficult to imagine what would have happened to accident insurance companies. Claims for indemnity on account of death from that and other contagious diseases under accident insurance policies have not been made for the reason that such an application of the term "bodily injury" was never intended. This novel application of the term has not been made in this state, nor, in my opinion, in any other jurisdiction where the point was directly involved. The case of Horton v. Travelers Ins. Co.,45 Cal.App. 462 [187 P. 1070], did not go to the length accredited to it in the main opinion. That case involved the sufficiency of the complaint on a policy almost identical with the present one, wherein it was alleged that by the unintentional use of infected dental instruments, virulent disease-bearing germs were introduced into the system of the insured. A natural and ordinary result of the use of dental instruments is an abrasion of some of the tissues of the oral cavity and such use is always accompanied by some manual interposition. The allegations of the complaint in that case must have been considered in the light of a matter of such common experience. Nor does the case of San Francisco *Page 480 v. Industrial Acc. Com., 183 Cal. 273 [191 P. 26], support the construction placed on the term "bodily injury" by the main opinion. In that case it was decided that the definition of the term "injury" by the legislature in section 3 of the Workmen's Compensation Act, as adopted in 1917 (Stats. 1917, p. 833), was a definition justifiable under the constitutional provision providing for workmen's compensation. The legislature defined the term as follows: "The term `injury,' as used in this act, shall include any injury or disease arising out of the employment." To hold that the special statutory definition of the term "injury" made for the purpose of putting into effect the workmen's compensation provision of our constitution should be applied to the term "bodily injury" as used in accident policies is, in my opinion, unwarranted.
Furthermore, as to the particular facts in this case, I am unable to agree that in the contraction of the disease by the insured there was that element of unexpectedness and surprise essential to prove death by "accidental means." The term "accident," as used in similar policies, has been given a definition in this state that is uniform and without substantial deviation. The term is defined as "a casualty — something out of the usual course of events, but which happens suddenly and unexpectedly and without any design of the person injured." (Richards v. Travelers Ins. Co., 89 Cal. 170 [23 Am. St. Rep. 455, 26 P. 762]; Price v. Occidental Life Ins. Co.,169 Cal. 800 [147 P. 1175]; Southwestern Surety Ins. Co. v.Pillsbury, 172 Cal. 768 [158 P. 762]; Olinsky v. RailwayMail Assn., 182 Cal. 669 [14 A.L.R. 784, 189 P. 835].) It must be borne in mind that the policy here in question does not insure against accidental death, but against death through accidental means. "A differentiation is made, therefore, between the result to the insured and the means which is the operative cause in producing this result. It is not enough that death or injury should be unexpected or unforeseen, but there must be some element of unexpectedness in the preceding act or occurrence which leads to the injury or death." (Rock v. Travelers Ins.Co., 172 Cal. 462, 465 [L.R.A. 1916E, 1196, 156 P. 1029, 1030].) An unbroken line of cases to this same effect is found in this state. *Page 481
In the present case the means through which the fatal malady was contracted by the insured was neither unusual nor unexpected. There was no element of surprise in coming in contact with the virulent organisms. In fact, such contact was foreseen and expected. The insured knew and realized the dangers incident to the performance of her duties as an attending nurse and by gargling, washing her hands, etc., took precautions to guard against the effect of the exposure. The fact that others similarly exposed did not contract the disease is not sufficient to prove that the insured contracted the same by accidental means. If the other persons present in the room from time to time had contracted the malady, there would have been no element of surprise or unexpectedness or of the unusual in so contracting the same, for they were all advised and warned of the danger to them by reason of their presence in the room. That such other persons did not fall a prey to what was an expected and anticipated contact with the germs would show no more than that their resistance was greater than that of the assured. Effect must be given to the plain language of the policy and a distinction made between the result to the insured and the means by which that result was brought about. It may be said that the result to the assured, namely, illness and death, was unexpected and unintentional; but that is far from saying that the means that produced the illness and subsequent death were unexpected, unusual, or not anticipated. If the insured had suffered an accident or disability by illness from any cause and had survived, indemnity for the same would have accrued under the disability terms of the policy. But to say that because this disability was provided for in contemplation of her occupation as a nurse therefore a death benefit would accrue when death was the result of an occupational hazard is entirely to disregard the separate and independent terms of the policy relating to indemnity for death as the result of bodily injury through accidental means.
Waste, C.J., concurred.
Rehearing denied.
Waste, C.J., and Shenk, J., dissented. *Page 482