INSURANCE.
What’s an Accident?--Major Vis.--Exposure and
Death.--Wholly disabled.--What can be recovered.--Heavy
Weights.--Stumbling.--Pitchforked.--Change of Business.--Lost beneath
the Dancing Waves.--A Man not a Private Conveyance.--Carelessness.
Shortly after the events related in my last chapter, I expected
business to call me away from home. Accidents by rail--explosions,
collisions, over-turnings, exploits of the fire-fiend--had become so
much the reverse of angel’s visits, that though some said I had the
hanging mark upon me, I determined to make assurance doubly sure and
take a bond of fate in the shape of an “accident ticket;” not that hope
told a flattering tale, or that vain expectations of making anything by
the transaction filled my soul, but as a preventive rather than a cure,
for accidents seldom happen when one is prepared, as showers seldom
descend when one is armed _cap-a-pie_ with umbrella and thick boots.
Ere spending my twenty cents, however, I determined to find out what
an accident, within the meaning of the ticket, really might be;
but I discovered that no satisfactory definition of the word had
ever been given by the courts. Cockburn, C. J., says that it means
some violence, casualty, or _vis major_; and that disease or death,
generated by exposure to heat, cold, damp, the vicissitudes of climate
or atmospheric influences, cannot be called accidental, unless,
perhaps, where the exposure is actually brought about by circumstances
which might give it the character of accident,--as a shipwrecked
mariner dying from exposure to cold and wet in a small boat upon the
roaring, raging ocean.[110] This decision settled that I could recover
nothing if my nose or my toes were frozen off; nor if my early demise
was brought about by croup, measles, or small-pox, caught in the
cars, could my family recover any remuneration for the loss of the
house-band. If, like the good Samaritan’s friend, I should chance to
fall among thieves, who should strip me of my raiment, wound me, and
depart leaving me dead, that, probably, would be considered a death
by violent and accidental means, for Judge Withey, of Michigan, has
laid it down that an accident is any event which takes place without
the foresight or expectation of the person, acted upon or affected
by the event.[111] In Maryland it has been defined as an unusual and
unexpected result attending the performance of a usual and necessary
act; and there it has been decided that every injury caused by
accident, save those specially excepted by the policy, are covered
by it.[112] And in New York an accident is said to be something which
takes place without any intelligent or apparent cause, without design
and out of course.[113]
I was pleased to find that I might recover for a “railway accident,” if
anything happened to me while travelling by the cars, although nothing
happened to the train, for instance, if while getting out, after the
cars had stopped, I should slip, fall, and injure myself, not through
any negligence of my own, but because the steps were slippery;[114]
and that any money to which I might become entitled under the policy
would not in any way lessen the damages which I might claim against
the carrier for any injuries received to my corpus.[115] This is only
fair, as one pays premiums to insure himself on the understanding that
his right to be compensated when he is injured is an equivalent for
the premium paid. It is a _quid pro quo_; larger if he gets it, on the
chance that he may never get it at all.[116] Where compensation to the
insured is granted “in case of bodily injury of so serious a nature
as wholly to disable the assured from following his usual business,
occupation, or pursuits,” I would be entitled to pay if so disabled
that I could not get to my office to work, although I were well enough
to transact business in my own bedroom, or clad in a _robe de nuit_
instead of a professional toga.[117] For total disability from the
prosecution of one’s usual employment means inability to follow one’s
usual occupation, business, or pursuits in the usual way:[118] _i. e._,
_e. g._, a farmer who can do nothing but milk, and a merchant who can
only keep his books, are totally disabled within the meaning of such a
provision as the above.[119] To be _wholly_ or _quite disabled_ is to
be unable to do what one is called upon to do in the ordinary course of
business, and this is by no means the same thing as being “unable to do
any part of one’s business.”[120]
The decided cases made it clear that I could recover only for the
personal expense and pain occasioned by the accident, and not damage
for loss of time or of profit occasioned thereby; and also, that if I
insured my life for only $1000, it could not be assumed that my life
was worth only that and nothing more, and an injury sustained estimated
at a proportionate sum.[121]
I also, as a result of my researches, learned the following: If a
policy provided that the company would be responsible for accidents
operating from external causes, I would get something if I injured
my spinal marrow by lifting my trunk;[122] but it would appear that
rupture caused by jumping from the cars while in motion and afterwards
running to accomplish certain business, done voluntarily and in
the ordinary way, and without any necessity therefor, and with no
unforeseen or involuntary movement of the body, such as stumbling, or
slipping, or falling, is not caused by violent or accidental means.
Though it might be otherwise if in jumping I should lose my balance and
fall, or strike some unseen object, or in running should stumble or
slip.[123] If, while on my travels, I should take to amateur farming
(not the most likely thing in the world, bucolic desires not filling my
soul, and the thermometer being down below nothing), and while pitching
hay let the handle of the pitchfork slip and pitch into my bowels,
producing thereby peritoneal inflammation, whereof I should die, that
would be an accidental death![124] Nor would the casual change of
occupation from the pursuits of the forum to that of the field, forfeit
my right to recover.[125] Where an accident produced hernia, which
caused death, it was held that the death was not within the exception
of the policy which provided that the company did not insure against
death or disability arising from rheumatism, gout, hernia, etc.[126]
If I should go in bathing and die from the action of the water causing
asphyxia, that, too, would be a death by external violence within the
meaning of the policy, whether I swam out too far, struck my head
against a rock in diving, or--unskilled in the natatorial art--got out
of my depth; but if I succumbed to an attack of apoplexy while taking
the bath, that would not be a death from accident.[127] A provision
that no claim is to be made under a policy, except in respect of an
injury caused by some “outward and visible means,” applies only to
non-fatal injuries.[128]
I found also, that it was legally correct--however paradoxical it may
appear--to say that I was travelling in a carriage, when in fact I was
actually alighting therefrom;[129] and that I would be “travelling in a
carriage provided for the transportation of passengers,” if, while in
the prosecution of my journey, I walked on foot, as passengers are wont
to do from one station to another. The courts, ever ready to interpret
a policy in the way most advantageous to the insured,[130] will not
allow “travelling in a public conveyance” to be construed literally,
and if an accident happens while one is getting off or on a train,
or attempting to do so for any reasonable purpose, it comes within
the terms of a policy insuring against accidents while travelling
by public conveyance.[131] Mr. John Wilder May (who has written a
large book on Insurance) thinks that, perhaps, in a reasonable and
substantially accurate sense a man may be said to be travelling by
public conveyance, when he is prosecuting a journey by rail or boat,
whether he is sitting still in a motionless car, or standing serenely
on the station-platform, or walking to and fro thereon waiting for a
start, or going into a station for prog, or returning therefrom after
having grubbed;[132] although Chase, C. J., held that a man who had
performed the greater part of a journey by steamboat and, there being
no public conveyance, proceeded on foot to his house some miles distant
from the port, could not exactly be said to be a private conveyance to
himself while walking.[133] An elephant may be a traveller.[134]
A poor fellow away down in Kentucky inadvertently and needlessly
put his arm out of a car window and had it injured by being bumped
against a post, and the court held the injury not accidental, being
attributable to the person’s own negligence.[135] But as this case
stands alone, it will scarcely answer to point a _moral_ or adorn a
tale, and the better opinion seems to be that contributory negligence
is no defence, as the liability rests upon contract, one of the chief
objects of which is to protect a man against his own carelessness or
negligence.[136] But one must not be guilty of willful and wanton
exposure of himself to unnecessary danger; for instance he must
not ride on the engine,[137] or attempt to cross the track when an
approaching train is within fifty feet.[138]
I was now assured that to be insured was sure to bring contentment, if
not riches.
FOOTNOTES:
[110] Sinclair _v._ Maritime Pass. Ass. Co., 3 El. & E. 478.
[111] Ripley _v._ Rw. Pass. Ass. Co., 2 Bigelow, Ins. Cases, 738.
[112] Prov. Life Ins. & Inv. Co. _v._ Martin, 32 Maryland, 310.
[113] Mallory _v._ Travellers Ins. Co., 47 N. Y. 52.
[114] Theobald _v._ Rw. Pass. Ass. Co., 10 Ex. 45.
[115] Bradburn _v._ Gt. W. R., L. R., 10 Ex. 3, 11 Eng. Rep. 330.
[116] Dalby _v._ Indian & L. Life Ass. Co., 15 C. B. 365.
[117] Hooper _v._ Accidental Death Ass. Co., 5 H. & N. 546; affirmed on
appeal, 5 H. & N. 557.
[118] May on Insurance, p. 644.
[119] Sawyer _v._ United States Casualty Co., 8 Law Reg. (N. S.), 233.
[120] Per Wilde, B., Hooper _v._ Accidental Death Ins. Co., 5 H. & N.
546.
[121] Theobald _v._ Rw. Travellers Ins. Co., 10 Ex. 45.
[122] Martin _v._ Travellers Ins. Co., 1 F. & F. 505.
[123] Southard _v._ Rw. Pass. Ass. Co., 34 Conn. 574.
[124] N. Am. L. & A. Ins. Co. _v._ Burroughs, 69 Penn. St. 43.
[125] Admins. of Stone _v._ U. S. Casualty Co., 34 N. J. 371; N. Am.
L. & A. Ins. Co. _v._ Burroughs, _supra_; Provident Life Ins. Co. _v._
Fennel, 49 Ill. 180; Prov. Life Ins. & Inv. Co. _v._ Martin, 32 Md. 310.
[126] Fitton _v._ Acc. Death Ins. Co., 17 C. B. (N. S.), 122; but see
Smith _v._ Acc. Ins. Co., L. R., 5 Ex. 302, a case of erysipelas.
[127] Trew _v._ Railway Pass. Ass. Co., 5 H. & N. 211, affirmed on
appeal, 6 H. & N. 839.
[128] Mallory _v._ Travelers’ Ins. Co., Ct. of Appeals, 47 N. Y. 52.
[129] Theobald _v._ Rw. Pass. Ass. Co., 10 Ex. 44.
[130] Hooper _v._ Accid. Death Ins. Co., 5 H. & N. 545; 6 Ib. 839;
Smith _v._ Acc. Ins. Co., per Kelly, C. B., _supra_.
[131] Tooley _v._ Rw. Pass. Acc. Ins. Co., 2 Ins. L. J. 275.
[132] May on Insurance, p. 661.
[133] Ripley _v._ Ins. Co., 16 Wall. (U. S.), 336.
[134] Gregory _v._ Adams, 14 Gray, 242.
[135] Morel _v._ Mississippi Valley Life Ins. Co., 4 Bush (Ky.), 535.
[136] Prov. Life Ins. & Inv. Co. _v._ Martin, 32 Md. 310; Trew _v._ Rw.
Pass. Ass. Co., 6 H. & N. 839; Schneider _v._ Provident Life Ins. Co.,
24 Wis. 28; Champlin _v._ Rw. Pass. Ass. Co., 6 Lansing (N. Y.), 71.
[137] Brown _v._ Rw. Pass. Ass. Co., 45 Mo. 221; May, p. 657.
[138] May on Insurance, p. 667.