sold one known as the "traveller's risk," and the other, which is higher priced, known as the "general accident." Tickets of the latter description have been held binding, even when purchased by railroad employees.1

The reported decisions concerning accident insurance relate chiefly to the construction of phrases used in the insurance policy or ticket; and these phrases suggest as the leading inquiry whether the insured party was injured "by accident" at all. As to this inquiry, it may be observed that the term "accident" excludes the idea of design, and denotes an event which proceeds from some unknown and unforeseen' cause, or happens without one's will or intention. But our latest decisions, turning upon the dubious reservations of such contracts, leave it exceedingly doubtful whether a policy of this sort is worth taking out unless ex

1 Brown v. Railway Passenger Co., 3 El. & El. 478; Providence Life Ass. Co., 45 Mo. 221.

2 In North American Ins. Co. v. Burroughs, 69 Penn. St. 43, death by accident was defined to be "death from any unexpected event which happens as by chance, or which does not take place according to the usual course of things." And see 131 U. S. 100.

It is reasonable to construe the word "accident" in such policies with reference to the will, intention, or design of the party insured, and not that of others having an agency in the disaster. Thus, a railway servant might intend to throw a train off the track and cause injuries, in which case, as to himself, there would be no accident resulting; yet, as to a passenger not expecting or having any agency in producing that result, the injuries sustained would be accidental injuries, and ought to entitle him to recover. This principle has been applied in a case where the insured was attacked by highwaymen while journeying. See Ripley v. Railway Pass. Ass. Co., 1 Dillon, 403. And see Sinclair v. Maritime, &c. Ins.

Ins., &c. Co. v. Martin, 32 Md. 310; Southard v. Railway Pass. Ass. Co., 34 Conn. 574. See Prov. Life, &c. Co. v. Baum, 29 Ind. 236, as to proofs of death. "Violent means," as well as accidental, are sometimes insured against.

Where the insured party causes the injury plainly by his own voluntary wilful or simply careless act, though not foreseeing that injury would result from such act, the inclination is to hold the insurer discharged from liability; and the ticket often expressly disclaims liability on the company's part for injuries caused by the insured person's wilful and wanton or negligent exposure. Morel v. Miss. Life Ins. Co., 4 Bush, 535; 56 Iowa, 664; Southard v. Railway Pass. Ass. Co., 34 Conn. 574. But see Schneider v. Prov. Life Ins. Co., 24 Wis. 28, which treats such an element for consideration with disfavor; May, §§ 530, 531, and latest citations. See, as to other reservations in such policies, Shader v. Passengers' Ins. Co., 66 N. Y. 441; 37 L. T. N. s. 356.

pressed plainly and simply, and with a liberal scope of expression in the contract.1 Where the conveyances are specially designated and limited in the policy, the risk is not to be extended to accidents caused in other conveyances or while the insured is travelling on foot; but a liberal construction applies to language so used, and in a proper case changes of conveyance incidental to the general journey insured against will be deemed embraced within the scope of the insurance contract.2

§ 557. Insurance on Property; Fire and Marine Insurance. IV. Hitherto we have considered only insurance risks assumed with reference to a person and which contemplate the payment of money on some lapse of life or health and bodily soundness. But insurance has reference often to risks taken upon property; or where the mutual intent is to replace that which may become destroyed or lost through some peril to which it is specially exposed. Fire and Marine insurance are the most familiar kinds referable to this latter head.

This kind of contract, by which one party undertakes to indemnify another against the loss of certain property, owes its present flexibility to the energy and shrewdness of modern

1 "Intentional injuries," caused by any person, are sometimes expressly excepted from such policies. 127 U. S. 661. This confines the risk very considerably. But jumping on or off a platform might be sometimes accidental in the popular sense of the term "accident." 131 U. S. 100. Or an injury in a fray. 104 Ind. 133.

2 Northup v. Railway Pass. Ass. Co., 2 Lans. 166; s. c. reversed, 43 N. Y. 516. Cf. Theobald v. Railway Ass. Co., 10 Ex. 44. On this subject, generally, see at length Bliss Life Ins. 683-721, which cites several English and unreported American cases. As to accidental death from various causes, see May Ins. §§ 515, 516; Mallory v. Travellers' Ins. Co., 47 N. Y. 52; Reynolds v. Accidental Ins. Co., 22 L. T. N. s. 820. Loss

cannot be recovered for partial disability when the express stipulation of the contract is for total disability. Lyon v. Railway Pass. Ass. Co., 46 Iowa, 631. As to whether one is a traveller, see May Ins. § 525. Travelling on foot is not travelling by a "public or private conveyance." Ripley v. Railway Pass. Ass. Co., 16 Wall. 336. But see May, § 529, criticising this decision. Reservations as to "change of occupation" are to be liberally construed. Stone v. Casualty Co., 5 Vroom, 371; 69 Penn. St. 43; May, § 532. Insurance against injury by accident includes all accidents not excepted by the express terms of the policy. Prov. Life Ins. Co. v. Fennell, 49 Ill. 180; Prov. Life Ins. Co. v. Martin, 32 Md. 310. See also Perry v. Prov. Life Ins. Co., 103 Mass. 242.

capitalists. The bottomry bond, which we have already examined, secures a loan upon the principle of insurance; and ships have been insured ever since the period when Rhodes controlled the navigation of the Mediterranean. But the law of fire insurance dates back in the courts only little more than a century and a half; and yet this branch of business at present engages the attention of large chartered companies in England and the United States, which, in taking their multitudinous risks, keep an immense aggregate capital constantly employed. Whatever the nature of the property on which such an insurance risk is taken, whether on houses or furniture, the risk itself, being an incorporeal chattel, represents personal and not real property, so far as the rights under the policy have any pecuniary value.

§ 558. The Same Subject.— Insurance on fire, as the name imports, applies to buildings and all species of property, real and personal, which are subject to destruction or direct damage by fire; and the insurance itself may be defined as a contract to indemnify for loss or damage to specified property, occasioned by that element, for a specified period. The contract itself, as in other cases of insurance, is called a policy, and the consideration of the contract is called the premium.1 Fire insurance appears to have first become the subject of judicial cognizance in England at the beginning of the eighteenth century.2

Insurance as applied to perils by sea, or marine insurance, is much older, though to Americans of the present day perhaps less familiar, than fire insurance. Not to speak of bottomry and hypothecation, contracts were made for the express purpose of insuring ships and merchandise from losses at sea at a very early period of modern history; and in a collection of Venetian state papers lately published in England, which relate to the trade of these countries, is found the statement of a merchant of Venice, made in 1512, as to the

1 Fland. Fire Ins. (1871) 17; Bouv. Dict. "Insurance;" 3 Kent Com. 466. See also May Ins. passim. The scope of this work does not per

mit of the extended examination of fire insurance.

2 See Lynch v. Dalzell, 4 Brown P. C. 431; decided in 1729 on appeal.

rate of marine insurance effected in England on property from Candia.1

Much that is laid down by the courts concerning fire insurance applies, with corresponding changes, to marine insurance. Here we have a contract between the insurer, or underwriter, and the insured, which generally takes its expression in that written instrument known as a policy, though such contracts might on general principle be oral only; and marine insurance policies, too, are signed by the insurer and not the insured, according to the uniform practice; the payment of a premium by the latter making the bargain complete.2 In this and in most respects, the doctrines of fire and marine insurance will be found quite or nearly alike; indeed, fire insurance, being the more recent topic of law, may be said to have sprung from marine insurance, as from a parent stock, notwithstanding its own capability, in latter days, of infusing some new elements of growth into that which first gave it existence. In point of fact the law of insurance, whether as to persons or property, may be studied as a whole with reference to leading principles. The contract of insurance is to be construed; there are doctrines as to warranties which may vitiate the policy if the insured is heedless as to his stipulations; doctrines as to representations which, if not material, will be lightly regarded; doctrines concerning the payment of premiums to

1 See Manly Hopkins on Marine Ins., cited in 1 Pars. Marine Ins. 10. The statute of 43 Eliz. c. 12 (1601), speaks in the preamble of this "usage among merchants, both of this realm and of foreign nations," as something that "hath been time out of mind;" the practice of these merchants being, "when they make any great adventure (especially into remote parts), to give some consideration of money to other persons, which commonly are in no small number, to have from them assurance made of their goods, merchandise, ships, and things adventured, or some part thereof, at such rates and in such sort

as the parties assurers and the parties assured can agree, which course of dealing is commonly called a policy of assurance, by means of which it cometh to pass, upon the loss or perishing of any ship, there followeth not the undoing of any man, but the loss lighteth rather easily upon many than heavily upon few, and rather upon those that adventure not than upon those that adventure." 43 Eliz. c. 12; cited in 1 Pars. Marine Ins. 10.

21 Pars. Mar. Ins. 34, 43; Hamilton v. Lycoming Mut. Ins. Co., 5 Penn. St. 339.

3 Mr. May's treatise is prepared on such a principle.

the insurer; doctrines, too, as to the enforcement of rights, on the happening of the contingency insured against, in accordance with the provisions of the policy.

§ 559. Miscellaneous Kinds of Insurance; Guarantee, etc.; Final Observations. We may add, in passing, that there is still another kind of insurance business, which, though taken up by several companies in this country, and established already on a very fair footing in England, is but little understood or esteemed here. The risk thus assumed is that of losses which employers suffer through the misconduct of their clerks; corporations, by the unfaithfulness of the corporate officers, and so on; in other words, the insurer guarantees the honesty of parties, and the contract is one of guarantee insurance. 1

There seems, in fine, no reason why we may not find the principle of insuring against hazards successfully applied, during the present century, in a variety of other ways not yet opened to enterprise and competition.2

But, on the whole, it should be said that the right to receive money under a contract on some contingency which may never happen partakes little of the essential and legal character of property, as the valuable subject of ownership; though it is otherwise, of course, when, by the happening of such contingency, payment becomes actually due from the insurer, by way of a money fund. There is but one kind of insurance among those we have enumerated-that upon a life where it can be said that the risk involves absolute

1 See Bliss, 722-733, citing English cases; Bunyon, 107 et seq. We are not aware of any decisions under this head in American reports. Mr. Bunyon says that this kind of insurance is beset with difficulty; for the guarantee of honesty continually resolves itself into the more difficult question of the guarantee of commercial credit or at least of solvency. See also May, §§ 540-547. The average honor or solvency of any community is hardly to be shown by statistics.

2 Insurance of rents, of titles, against theft, hailstones, upon the lives of cattle and against accidents to carriages, are various species of the insurance contract known in England and Continental Europe, but thus far introduced but slightly (except for title insurance) into this country. See May Ins. §§ 544-547. Even insurance against the birth of issue has been practised to some extent in Great Britain. Ib. So, too, a landlord's liability is insured against.