(dissenting). The principal, if not the only, question in this case is whether the death of the insured was the result of accident, within the meaning of the words used in the contract, or of disease or other cause not covered by the stipulations of the parties. There is no dispute as to the fact that death resulted from the effects of a malignant sore upon the lip of the insured, which, soon after its appearance, involved the neighboring parts, producing septicemia and utter exhaustion. There were two theories as to what this local sore was. On the part of the plaintiff, it was claimed that it was what is known as malignant pustule, while the defendant sought to establish the fact that it was a facial carbuncle and, therefore, a disease, or the result of disease, within the terms or meaning of the contract. The court instructed the jury that if the sore was, in fact, a carbuncle, that the plaintiff could not recover, but that if it was a malignant pustule produced upon the person of the deceased in the manner claimed by the plaintiff, that then the plaintiff was entitled to a verdict.
The testimony of the medical experts produced by the plaintiff was to the effect that this pustule is not a disease in the strict sense of that term, but a pathological condition of the system caused by the accidental infliction of diseased or putrid animal matter, infested with bacteria or bacilli anthrax, upon the thin skin of the lip whence the bacilli multiply and are diffused through the system. The animal virus that produces the sore comes from the' hides, hair, wool or flesh of animals suffering from the disease known as anthrax, and may be transmitted to human beings directly by the immediate contact of the individual with it, by his touching or handling it, and then bringing the matter in contact wnth the skin or thin mucous membrane, or it may be carried by carrion birds, or by *314insects, and in various other ways communicated to man and inflicted or implanted upon some exposed portion of the body. People whose business requires them to handle hides, hair or wool, and who live in cattle grazing regions, or localities such as the southern or western portions of the United States, are, according to the proofs in this case, more exposed to malignant pustule than persons in other vocations, or who live in localities where cattle do not abound.
The insured went to Council Bluffs on the 1st of February, 1884, and, as has been stated, died there in less than two months after. He was first employed as a bookkeeper in a meat" market, and later as a check clerk in the transfer department of the Union Pacific Bailroad. It was shown that carloads of hides frequently pass that station, and that a large number of cattle are brought there and slaughtered in the vicinity, but there was no direct or positive proof that the deceased ever came in immediate contact with the hides, or even the flesh of these animals.
We must accept the verdict of the jury that the deceased died from the effects of malignant pustule. Whatever an appellate court may think of the weight and force of the evidence submitted at the trial it cannot, when there is some evidence, ignore or disregard the deliberate judgment of the body which, under our system of administering justice, is empowered and. required to determine disputed questions of fact. There was evidence to warrant'tlie finding, and in such a case, after review by the General Term, this court must deal with the case upon the principle that death was caused as claimed by the plaintiff.
Whether the malignant pustule of which the insured died was the result of animal virus coming in contact with the lip, or whether the sore was produced in some other way, was, perhaps, a more difficult question; but in view of the testimony of the plaintiff tending to show that the infliction of this virus, 'upon the person is the only cause of pustule, and that the-insured was in some degree exposed to it, and that death generally follows contact with it in a few days, we think it. *315cannot be said that this finding is based wholly on speculation and conjecture. It was the province of the jury to draw all proper inferences from the testimony, and while' there was no-direct or positive proof as to when or how the animal virus came in contact with the person of the deceased, .yet the jury was warranted in finding Irom the other testimony in the case • that in some way the bacilli anthrax were implanted upon the lip where the sore appear,ed,vand at some time within ninety days prior to the death of the insured. Assuming that death was the result of malignant pustule, caused in the manner claimed by the medical experts who testified in beliali of the plaintiff, the question remains whether this was “eautemal, violent and accidental?means,” within the intent and meaning of the contract. This court has held that where death results front breathing an atmosphere impregnated with illuminating gas which in some way-aescaped from pipes' while the insured was asleep, the beneficiary was entitled to recover under a policy containing those words. (Paul v. T. Ins. Co., 112 N. Y. 472.) Death by drowning is included in such a contract. (Trew v. R. P. Assn., 6 H. & N. 839; Mallory v. T. Ins. Co., 47 N. Y. 53.) So is death which may have been produced by fright. (McGlinchey v. F. & C. Co., 80 Me. 251.) Without .attempting to collate all the cases on this point, it is sufficient to observe that the courts, both in this country and in England, have given. to these words a broad and liberal interpretation in favor of the insured- or the beneficiary designated in the policy. (U. S. M. A. Assn. v. Barry, 131 U. S. 100, 121; N. A. L. & A. Ins. Co. v. Burroughs, 69 Penn. St. 43; A. Ins. Co. v. Crandad, 120 U. S. 527; Winspear v. A. Ins. Co., L. R. [6 Q. B. Div.] 42; Paul v. T. Ins. Co., supra.) Guided by the principles laid down in these and other cases, and by what seems to me to have been the inténtion of the parties, I am of the opinion that we "should hold in this case that the infliction of animal virus by some exterior force or power upon the person of the deceased, as found by the jury, was a bodily injury, “affected through external, violent and accidental means,” producing^ death, within the intent and mean*316ing of tlie policy and that the defendant is liable. "When death results from the accidental infliction of the animal virus upon the person, whether by handling the same, or deposited upon Ms person by insects or otherwise as shown by the witnesses for the plaintiff, it cannot, I think, be said that the jury was bound to find that the malignant pustule was a disease within the conditions of the policy exempting the defendant from liability. The jury could have found in view of the evidence that the deceased lived in a locality and was engaged in employments in which he was exposed to contact with this peculiar form of poison, and it seems to me that a malignant pustule produced by the deposit upon the lip of the deceased of a particle of this animal virus resulting in death, is as much an .accident as in the case of death from breathing illuminating gas while asleep. There was evidence upon which the "jury could have found that the deceased contracted the pustule in this way.
For these reasons I am constrained to dissent from the prevailing opinion in this case, and am in favor of affirming the judgment.
All concur with Peckham, J., except Ruges, Oh. J., and O’Bbien, J., dissenting.
Judgment reversed.