The opinion
MOORMAN, Circuit Judge
(concurring).
I concur in the result, not only because the record shows that there was a failure to file proofs of loss within the time provided in the policy, but for the further reason that in my opinion there was no substantial evidence upon the main issue to submit to the jury. Upon that issue it was necessary for plaintiff to show, among other things, a “cut or wound.” The only basis for such an inference in the evidence is that sometimes the plucking of a hair will cause an abrasion. This happens so rarely, though, that, when it does happen, it is thought by Judge SIMONS to be a “slip or mishap” within the meaning of the Pope Case. I do not agree with that view, but accepting it for present purposes, I still think the evidence was not sufficient to take the case to the jury. It is rare, extremely rare, for an infecting germ to enter the blood through an abrasion caused from the pulling of a hair. It may enter through the orifice which is left and cause septicemia where there has been no abrasion, or perhaps even through the mucous membrane, as the medical proofs show. In this ease the decedent plucked a hair from his nose, and several hours later a pimple appeared at or near that place which became or was infected. The jury was permitted to infer from these facts, or surmise, as it seems to me, that the infection entered through the orifice from which the hair was pulled, and to draw from that inference the further inference that there was an abrasion or tearing of the skin; the latter inference being based upon the former, with the additional evidence that an abrasion may occur when a hair is pulled. I do not think the jury should have been permitted to speculate upon this latter possibility.