(dissenting) — Reluctantly, I am compelled to dissent from the foregoing decision, upon the facts.
To me, the facts preponderate in favor of appellant, and in such case it is our statutory duty not to be bound by the findings and judgment of the trial court.
There is no conflict that appellant found a purchaser upon the terms required by the seller. After the sale, and when the ship was about to be delivered to the purchaser, the purchaser made some untenable objection about the transfer of the flag, and also demanded the new mainmast, dories and chronometer. None of these objections were allowed to interfere with the final sale by the same owners to the same purchaser, for the owners had no difficulty in transferring the ship to the purchaser, and no new mainmast, dories and chronometer were furnished. The ship was sold and delivered to the same purchaser, upon the same terms and for the same price, as in the sale consummated by the appellant. These facts lead me to the inevitable conclusion that there was simply an attempt to avoid and evade the payment of appellant’s earned commission, and go through the forms of a failure of compliance and a new sale. Judgment should have been for appellant.
*577or which shall result in the death of the insured under the above conditions,”
then the policy rendered the appellant liable for $600.
The plaintiff was the beneficiary named in the policy. On August 5, 1916, while the policy was in effect, the insured, who was a section foreman in the employ of the Northern Pacific Railway Company, while attempting to get upon a moving hand-car, was struck on the small of the back by the handle of the moving car. The accident occurred a few minutes before time to quit work in the evening. The insured arrived home about an hour later, and Mrs. Day examined the injury and found a bruise on the back about an inch and a half in diameter. She bathed the bruise that night with turpentine, and the next morning Mr. Day went to work, and the next evening Mrs. Day again bathed the bruise with turpentine. The bruise continued to swell until about the 20th of August, when Dr. Davis was called and pronounced the bruise a carbuncle. Thereafter Dr. McKinnon was called, and he, also, pronounced the bruise a carbuncle and lanced it.. Prom the time of the injury the bruise continued to get worse, but Mr. Day went about his work until about the 20th of August. On the 23d he was taken to a hospital at Seattle and Dr. Willis was called. At that time Mr. Day was in a very serious condition. Dr. Willis called Dr. Burns in consultation and they concluded that nothing could be done for Mr. Day. That night about 12:30 Mr. Day died.
Prior to the time of the injury, Mr. Day had been in perfect health and had never been sick, except on one occasion when he had typhoid fever, which was many years ago. At that time he was advised that he might be subject to diabetes on account of the fact that he was a large man and a hearty eater. In answer to in*578terrogatories propounded to Dr. Willis, lie stated as follows:
“When and where were .you first called to attend deceased on account of his last illness? (a) Time 1 o’clock p. m. Wednesday, 23rd day of August, 1916. (b) Place, Seattle General Hospital.
“What was the direct or immediate cause of death? Answer in detail. Infection from carbuncle on back.
“What was the indirect cause or contributing cause of death? Answer in full detail. Diabetes, also history given of an accident which may have been the beginning of the carbuncle.
“Are you satisfied that the death of the deceased was due solely to bodily injuries effected exclusively and directly by external, violent and accidental means ? No.
“Are there any facts not stated above which would serve to give a better understanding of the case? If so, state them. When I was called he was suffering from a severe infection from a very large carbuncle on the lower part of the back. Had sugar in the urine and gave a history of an accident a short time previously.”
Dr. Burns gave answers substantially to the same effect. These two doctors did not see the patient until about twelve hours before his death, and then but for a few minutes. At that time the patient was in a semiconscious condition. The other two doctors who had previously treated the patient, were not called as witnesses. Upon the answers to these interrogatories, the appellant argues that the death of the insured was not caused by external, violent and accidental means, but was caused by a disease with which tbie deceased was suffering at the time of the injury. The only evidence that the deceased was suffering from any disease at the time of the injury is contained in the answers to the questions of Doctors Willis and Burns, the substance of which is above quoted. We *579think it cannot be said from this evidence alone that the death of the insured was caused by a disease other than the disease developed from the bruise. Counsel for appellant argue that the injuries caused by the handle of the hand-car striking deceased was not sufficient to cause a boil, but we think it is plain from the testimony of Mrs. Day and her daughter, who examined the deceased within a short time after the accident, that a large bruise, an inch and a half in diameter, was upon the small of his back. This bruise continued to grow worse and developed into a carbuncle, and the carbuncle, after it was lanced, developed an infection which caused the death of deceased. This clearly made a prima facie case of death from external, violent and accidental means. In order to show that the death was not caused by external, violent, accidental means it was necessary to show that there was some other cause. The evidence falls far short of showing any other cause.
The rule in cases of this kind is fairly stated, we think, in White v. Standard Life & Accident Ins. Co., 95 Minn. 77, 103 N. W. 735, 884, as follows:
“Similar policies have been before both the state and federal courts, and the consensus of judicial opinion is that, subject to the exceptions contained in the policy, if the injury is the proximate cause of death, the company is liable, but, if an injury and an existing bodily disease or infirmity concur and co-operate to that end, no liability exists. If, however, the injury be the cause of the infirmity or disease — if the disease results and springs from the injury — the company is liable, though both co-operate in causing death. The distinction made in this particular is found in that class of cases where the infirmity or disease existed in the insured at the time of the injury, and, on the other hand, that class of cases where the disease was caused and brought about by the injury. And *580even in cases where the insured is afflicted at the time of the accident with some bodily disease, if the accidental injury be of such a nature as to cause death solely and independently of the disease, liability exists. ’ ’
We think it is plain from the evidence that the bruise was the primary cause of death; it developed into a carbuncle and an infection which caused the death. We find no evidence to indicate that deceased was afflicted with diabetes prior to the injury, and there is no evidence to show that the symptoms of diabetes were not caused by the infection. It is more probable that the symptoms of diabetes were caused by the injury, than that death resulted from diabetes or other disease.
We are satisfied the trial court properly gave judgment in favor of the respondent.
Affirmed.
Main, C. J., Parker, Fullerton, and Holcomb, JJ., . concur.