If a tooth is extracted, upon request of the insured, by a competent and skillful dentist, who performs the operation in the usual and ordinary manner, with proper and sterile instruments, employing the requisite degree of care and skill, and thereafter an embolus develops from infection, producing death, can the beneficiary recover double indemnity provided in a policy of insurance for such death resulting “directly and independently of all other causes from bodily injuries effected solely through external, violent, and accidental means,” etc. ?
Undoubtedly the insured met an accidental death, but the determinative question is whether such death was produced by “external . . . accidental means.” The plaintiff proceeds upon the theory that the extraction of the tooth produced a port of entry for streptococcus germs, and that these germs in turn ultimately produced the embolus resulting in death. Hence, the inquiry arises: Was such port of entry the result of “external, . . . accidental means” ?
The courts and textwriters are divided into two opposing camps in solving the relative significance to be given the terms “accidental death” and "external . . . accidental means.” Literally hundreds of cases have been written upon the subject, and while many of them may be distinguished from the facts in the case at bar, nevertheless many of them in principle are directly in point, and it is useless to attempt to harmonize the trend of judicial thought. Indeed, it must be conceded that the two lines of reasoning are parallel. There are three cases which illustrate the divergence of reasoning and are typical in every particular among a host of cases, far too numerous to discuss or cite. These eases are Lewis v. Ocean Accident & Guarantee Corporation, 120 N. E., 56, 7 A. L. R., 1129; Caldwell v. Travelers’ Ins. Co., 267 S. W., 907, 39 A. L. R., 56; Landress v. Phoenix Ins. Co., 291 U. S., 491. The opinion in the Lewis case, supra, was written for the New York Court by Justice Cardozo. The Caldwell case, supra, was written for the Missouri Court by presiding Justice Blwir, and the Landress case, supra, was written by Mr. Justice Stone, with Mr. Justice Cardozo dissenting.
The fundamental difference between the two schools of thought upon the question of law involved is stated clearly and at length in the Caldwell case, supra. The opinion declares: “There are two clearly defined lines of cases on this question. One holds that, where an unusual or *165unexpected result occurs by reason of tbe doing by insured' of an intentional act, where no mischance, slip, or mishap occurs in doing the act itself, the ensuing injury or death is not caused through accidental means; that it must appear that the means used was accidental, and it is not enough that the result may be unusual, unexpected, or unforeseen.
“The other line of cases holds that, where injury or death is the unusual, unexpected, or unforeseen result of an intentional act, such injury or death is by accidental means, even though there is no proof of mishap, mischance, slip, or anything out of the ordinary in the act or event which caused such injury or death.
“Industrious counsel have cited an imposing array of cases from this and other jurisdictions. In the number of cases cited respondent has far outdone the appellant. By actual count, her counsel has cited 116 cases and textwriters to this point alone. Such a formidable array has challenged the interest and industry of the writer to undertake the laborious, although not entirely unpleasant, task of examining every case cited. The great majority of those cases are found not to be in point on the question before us.”
Thereupon, the opinion analyzes the Missouri decisions upon the subject and many of the leading eases in other jurisdictions. The conclusion reached by the writer of the opinion is as follows: “Defendant insured only against death or injury suffered through accidental cause of insured’s death. Assuming that insured’s death was caused by the operation voluntarily undertaken and admittedly performed in a skillful manner, plaintiff must show that something unforeseen, unusual, or unexpected and unintended occurred during the progress of the operation, and that this something caused insured’s death. It is not enough that there be suspicion, guess, possibility, or speculation that something unexpected, unusual, or unforeseen occurred during the operation.” A thumb-nail sketch of the facts in the Caldwell case, supra, is that the insured’s bowels became obstructed in an unusual and unexpected manner as a result of a skillful operation performed on him for hernia, causing death.
The Lewis case, supra, disclosed that the insured voluntarily punctured a pimple on his lip, resulting in death from inflammation of the brain. Justice Cardozo said: “We think there is testimony from which a jury might find that the pimple had been punctured by some instrument, and that the result of the puncture was an infection of the tissues. If that is what happened, there was an accident. We have held that infection resulting from the use of a hypodermic needle is caused by ‘accidental means.’ . . . Unexpected consequences have resulted from an act which seemed trivial and innocent in the doing. Of itself, *166the scratch or the puncture was harmless. Unexpectedly it drove destructive germs beneath the skin, and thereby became lethal. . . . The punctured wound is an adequate cause. The evidence suggests no other. . . . Here, as elsewhere, the law contents itself with probabilities, and declines to wait for certainty before drawing its conclusions.”
In the Landress case, supra, the insured voluntarily exposed himself, under normal conditions, to the sun while playing golf, resulting in death from sunstroke. The pertinent language of the disability clause in the policy was substantially similar to that in the policy involved in this suit. The Supreme Court of the United States, speaking through Mr. Justice Stone, declared: “Petitioner argues that the death, resulting from voluntary exposure to the sun’s rays under normal conditions, was accidental in the common or popular sense of the term, and should therefore be held to be within the liability -clauses of the policies. But it is not enough, to establish liability under these clauses, that the death or injury was accidental in the understanding of the average man- — that the result of the exposure ‘was something unforeseen, unsuspected, extraordinary, an unlooked-for mishap, and so an accident,’ . . . for here the carefully chosen words defining liability distinguish between the result and the external means which produces it. The insurance is not against an accidental result. The stipulated payments are to be made only if the bodily injury, though unforeseen, is effected by means which are external and accidental. . . . This distinction between accidental external means and accidental result has been generally recognized and applied where the stipulated liability is for injury resulting from an accidental external means.” See, also, Harris v. Ins. Co., 204 N. C., 385, 168 S. E., 208; Mehaffey v. Ins. Co., 205 N. C., 701, 172 S. E., 331.
In the case at bar liability must rest upon the theory that the extraction of the tooth made a port of entry for death-dealing germs residing in the mouth or body of the insured, and that such germs produced an infection resulting in an embolus, producing death. It is manifest that the chain of causation must begin at the extraction of the tooth. However, the evidence discloses that such extraction was intentional, skillfully done in the ordinary and usual manner, with no mishap, unforeseen element, or misadventure. Furthermore, such extraction was the means, cause, or agency resulting ultimately in death. Therefore, if such cause or agency was intentional, usual, and exj>ected, can it be said that such cause or agency was accidental, or constituted “external . . . accidental means ?”
After a full examination of pertinent authorities, this Court is of the opinion that the line of cases or school of thought denying liability under such circumstances is in accord with the greater weight of reason and *167justice, and the motion for nonsuit should have been sustained. Moreover, the experts who testified at the trial were unable to say whether the embolus developed from the extraction of the tooth or the subsequent operation, and consequently the real cause of the death is left in fog and conjecture.
Reversed.
Olabicson, J., dissents.