Simply stated this appeal presents the question as to whether the death of an insured from an intestinal obstruction caused by adhesions following a gall bladder operation is an accidental death within the meaning of a policy provision that such death shall result “ directly from bodily injury effected solely through external, violent and *188accidental means independently and exclusively of all other causes ”. The majority has reached the conclusion that a jury question is presented by the proof. The trial court dismissed the complaint at the close of the evidence holding as a matter of law that death was not due to an accident. In our opinion that decision was correct and the judgment should be affirmed.
In considering the meaning of the words “accident” and “accidental death” it is noteworthy that the courts of this State have emphasized the necessity for ascribing to them their plain and every-day usage by the ordinary man. Thus — “ His death was accidental and, as we use these words in common parlance, we would speak of it as an accidental death. Contracts are to be interpreted in the light of the language which we commonly use and understand; in other words, our common speech.” (Mansbacher v. Prudential Ins. Co., 273 N. Y. 140, 144.) And again — “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 tragically 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 courts ” (Lewis v. Ocean Acc. & Guar. Corp., 224 N. Y. 18, 21).
As the present record is read it becomes apparent that plaintiff’s case has been proven to a large extent upon medical testimony having to do with the fact that adhesions following such an operation have a low incidence when compared with the total number of gall bladder operations performed or observed. Thus, the operating surgeon testified that he had never encountered a case of adhesions following a gall bladder operation; that it was unusual and unique; that there was no way of determining before the operation that it would occur. This witness, however, agreed that this was a major operation and in all such there are certain operative risks. One of such risks involved in all abdominal operations “ is a possibility that post-operative adhesions can form and cause an obstruction ” ¡and they may occur after & gall bladder operation. The witness was positive that during the operation and post-operative treatment there had been no mistake and that the insured “ died from what is commonly called a post-operative complication ”.
In the light of the foregoing legal principles and this testimony it is submitted that the test is not a mathematical formula as to the number of gall bladder operations a surgeon may have *189performed before the first case of adhesions is observed. This would seem to be an erroneous application of the test words 1 ‘ unforeseen “ unexpected ’ ’ and ‘ ‘ extraordinary. ’ ’ The true test is whether as we use the words in common parlance the average man would speak of the occurrence as an accidental death. ‘ ‘ When a man has died in such a way that his death is spoken of as an accident, he has died because of an accident, and hence by accidental means.” (Cardozo, J., dissenting in Landress v. Phoenix Ins. Co., 291 U. S. 491, 499.)
It is recognized that the majority of persons approach major surgery with a fear of the unknown. Such apprehension is shared by patient and surgeon alike. In the language of the operating surgeon in this case “ anything can happen after an abdominal operation.” It is well summarized in the common parlance of the layman by the oft-heard cynical statement that “the operation was a success but the patient died.” True it may be that in terms of arithmetic and in the personal experience of any one surgeon such happenings are unusual. But in the instant case the operating surgeon agreed with the statement of a noted text writer in the field that “ [i]ntestinal obstructions through the agency of adhesions may occur at any time after operation”. Thus, such an occurrence is foreseeable and not necessarily unexpected even though it does not happen in the great majority of cases.
Decisions by courts in this and other jurisdictions support the view that death by post-operative complications does not fall within the connotation of accidental death as those words are used in common parlance. The issue was passed upon by the Appellate Term (Frankenthaler, Shientag and Noonan, JJ.) of this department in Bennett v. Equitable Life Assur. Soc. (14 Misc 2d 759). That determination was then 'affirmed by this court (261 App. Div. 819). Therein it appeared that death ensued as the result of a post-operative pulmonary embolism. A judgment in favor of the insured’s beneficiary was reversed and the complaint dismissed. It was held that the cause was neither trivial nor the result unforeseen.
This decision was followed in Preferred Acc. Ins. Co. v. Clark (144 F. 2d 165) in applying the law of this State to a similar policy provision. There the insured after major surgery for removal of gall bladder and appendix suffered an acute massive pulmonary collapse and died. In reversing a judgment in favor of the beneficiary the court said (pp. 168-169): “Excluding those cases where the condition of the patient is desperate and an operation is resorted to with the hope of possibly saving *190his life, we know that death does not ordinarily result from a major abdominal operation. Yet we also know that death does result from complications arising after major abdominal operations in a limited number of cases, and that, while the patient does not expect death, he knows it is a possible eventuality. For example, one who submits to a simple appendectomy, where the condition is not acute, knows that he may be one of a comparatively small number who will die as a result of the operation. He does not expect death but he knows it may occur. In such cases, we do not think an ordinary man would say that the death was accidental. Here, the insured was suffering from a chronic gall bladder ailment. In addition to that, his appendix was seriously involved. He was also suffering from a parenchymatous degeneration of the liver and kidneys. He was 62 years of age. We do not think that the ordinary man, under the attending facts and circumstances, where a major operation in the upper abdominal cavity caused a pulmonary collapse resulting in death, would regard the death as accidental.”
In general we agree with the views expressed in the concurring opinion of the Presiding Justice, but feel that those very views compel the opposite conclusion to that reached. This record is searched in vain for factual material to which the legal principles stated therein might be applied by the triers of the fact upon a new trial. It is suggested that the burden is placed upon the plaintiff of proving a determinative act, fixed in time and place, as an essential link in the chain of causation. Here the proof is clear that following the operation a part of the small intestine adhered to the bed of the gall bladder causing the intestine to kink and become obstructed. A laparotomy was performed and the adhered intestine separated. Following death an autopsy revealed that new adhesions had formed in the same area. The court inquired of the operating surgeon if the latter had any opinion “as to how it did happen ”, to which the witness replied “ Not at all. ” Immediately thereafter the witness said “as a doctor, I would like to know.”
In sum, the insured died from one of a group of causes denominated as post-operative complications. In our opinion the average man would not say that death was accidental. Speaking in the general language of a layman the danger of such a complication was ever present. It may not have been expected by the attending surgeons but the risk thereof was foreseeable. It was not a mishap that was extraordinary. Neither was it unlooked for as a possible result of such surgery. The incidence of occurrence in this type of operation may be *191low but this is insufficient to conclude that an issue of fact is presented.
The judgment should be affirmed.
Valente, J., concurs with Stevens, J.; Botein, P. J., concurs in concurring opinion, in which Valente, J., concurs; Bastow, J., dissents in a dissenting opinion in which Breitel, J., concurs.
Judgment reversed upon the law and upon the facts, and a new trial ordered, with costs to abide the event.