I do not wish to dissent from the conclusion: reached in this ease, because of the nature of the issues tendered by the defendant; but, to avoid any misapprehension, as to the effect of defendant’s by-laws, Article 4, Section 2,- and Article 6, Section 3, I wish to emphasize the thought that, if the issue had been properly tendered, I think the case should, at least have gone to the jury, for it to determine, whether or not the death of the assured resulted directly from an abrasion or cut of the skin, through which there was introduced into the system, by the instruments or by the means causing the abrasion or cut, specific bacteria, which, within a period of 10 days after the injury, produced blood poisoning or infection, and that, had the jury so found, the limit of plaintiff’s, recovery would have been $500. We must give these two-by-laws some effect, and the most that can be said for them, is, that, if the pleader had properly tendered the issue, defendant is liable for the death of assured, due to blood poisoning or, infection, to the full amount of the policy, in the event that, the germ which was brought into the system was not introduced through an abrasion or cut, but in some other way, and that the abrasion or cut was the direct result of an accident. I am not prepared to say, in view of the issues tendered and the motion filed by defendant, that the question is now before-us as to whether the matter should have gone to the jury at all. What I wish to be clear about is this: In my opinion,. *123had the issue been properly tendered, defendant, on the testimony appearing in the record, was entitled to have the question above mooted submitted to a jury. Defendant undoubtedly intended to limit its liability in certain cases of blood poisoning or infection, and had enough testimony to take the case to the jury upon the question of .its limited liability.
For these reasons, I am impelled to file this separate opinion.