paying premiums.1 But, as we have also seen, the agent may, by his conduct in connection with the execution of the written application, estop the company where the misstatement is in reality his act, within the scope of his authority, and without fault on the part of the insured." Neglecting, however, to read the application without sufficient excuse is fault on the part of the insured.3 § 187. Errors in Age.—Any error made in understating the age of the insured will be adjusted by paying such amount as the premiums paid would purchase at the table rate. This provision is liberal to the insured, and more reasonable than a stipulation providing for absolute forfeiture in case of an error in stating the age. This clause illustrates the disposition on the part of insurance companies to make an equitable arrangement with the insured, so far as they can do so without exposing themselves to unscrupulous and fraudulent claims. § 188. Assignments.-No assignment of this policy shall take effect until written notice thereof shall be given to the company. This provision, be it observed, does not prohibit an assignment of the policy. It is desirable that the insured should have the opportunity of making free use of this form of property, for it may often be convenient to secure money, by loan or otherwise, upon it. Unlike the case of a fire policy, as we have seen, a life policy was considered assignable at common law. And, by the better opinion, if the policy is valid when taken out, it may be assigned or made payable to one who has no insurable interest; though in the Federal Supreme Court a different rule has been suggested. A pledge or deposit of the policy is not of itself an assignment. Where, with the consent of the insurers, an assignment 1 Critchett v. American Ins. Co., 53 Iowa, 404; s. c., 36 Am. Rep. 230. Boehen v. Williamsburgh City Ins. Co., 35 N. Y. 131; s. c., 90 Am. Dec. 787. Ins. Co. v. Wilkinson, 13 Wall. 222. Miller v. Phenix Mut. Life Ins. Co., 107 N. Y. 292. N. Y. Life Ins. Co. v. Fletcher, 117 U. S. 519. Ryan v. World Life Ins. Co., 41 Conn. 168; s. c., 19 Am. Rep. 490. 4 Griffey v. N. Y. Central Ins. Co., 100 N. Y. 417; s. c., 53 Am. Rep. 202. has been consummated, this amounts to a new contract between the company and the assignee.1 As to the past, however, the assignee simply steps into the position of the assignor, and can only recover under the policy in case the assignor has not been guilty of any breach. No one except the company can, in any event, make objection to the assignment from the original insured to the assignee, unless the policy is payable to other beneficiaries, who have a vested interest therein.2 After the death of the insured, the interest in the policy is a chose in action which can be assigned without consent of the insurers, and without regard to the provisions of the policy.3 § 189. Incontestable.-This policy, after two years, will be incontestable, except for fraud or non-payment of pre mium. Insurers have been somewhat stimulated, no doubt, by the statutory requirements, which will be found in the appendix, to insert this liberal provision. 1 Fogg v. Middlesex Mut. Fire Ins. Co., 10 Cush. 337. 50. 'Mellen v. Hamilton Fire Ins. Co., 17 N. Y. 609. Hall v. Dorchester Leinkauf v. Calman, 110 N. Y. Mut. Fire Ins. Co., 111 Mass. 53; s. c., 15 Am. Rep. 1. CHAPTER XVIII. THE ACCIDENT POLICY. ACCIDENT insurance is a branch of life insurance, and is governed by the same principles. The latter protects against loss by death, whether caused by old age, disease, or accident. The former is limited to loss caused by accident, whether occasioned by a bodily disability or fortuitous death. § 190. Accident.—An accidental injury is one that happens to the insured without the concurrence of his will or intent, but it may be the result of his intentional act provided only such result was not foreseen; thus in case of an injury to the insured caused by intentionally jumping from the platform of a train of cars under such excusable circumstances that no harm could have reasonably been expected to follow.' So of an injury to the insured caused by a blow from the handle of a pitchfork slipping through his hands while he was loading hay, which produced peritoneal inflammation and ultimately death, the beneficiary was allowed to recover on the ground that the loss was by accident.2 So of a sprain caused by lifting heavy weights. So of an unintentional draught of poison.* Unless expressly excluded by the terms of the policy, an accident covers an injury intentionally inflicted upon the insured by another; as, for example, in an affray.5 But where the terms of the policy expressly exclude an injury of that character, the restriction of the contract will prevail. 1U. S. Mutual Accident Asso. v. Barry, 131 U. S. 100. But see Southard v. Railway Pass. Assur. Co., 34 Conn. 574. ? North Am. Ins. Co. v. Burroughs, 69 Pa. St. 43. Martin v. Travellers Ins. Co., 1 F. & F. 505. App. 509 (1890). But see Bayliss v. Order of Chosen Friends v. Garrigus, 104 Ind. 133. DeGraw v. National Acc. Society, 51 Hun, 142. Travellers Ins. Co. v. Mut. Acc. Asso. v. Tuggle, 39 Ill. McConkey, 127 U. S. 661. Sunstroke, when not expressly excluded from the operation of the policy, is generally considered to be a disease rather than an accident.1 In regard to negligence of the insured, where the policy is silent, the rule is the same as in other branches of insurance; but, as we shall soon see, the usual conditions of the policy modify the insurer's liability in this respect. Accidental injury is a phrase of such broad scope that, as might be expected, the insurers have limited its application by many restrictive provisions, differing somewhat in the forms of policies adopted by the different companies. § 191. Amount of Recovery and for What Accidents.-The sum of.......... dollars per week against loss of time not exceeding twenty-six consecutive weeks, resulting from bodily injuries effected through external violent and accidental means which shall, independently of all other causes, immedi ately and wholly disable him from transacting any and every kind of business pertaining to his occupation above stated, or if loss by severance of one entire hand or foot, etc., or if death results from such injuries alone within ninety days. Death by accidental drowning is by external, violent, and accidental means. Death during a plunge bath, in the house, was held not to be within the policy. But where a boat was overturned by the waves and the insured was drowned, the death was covered by the policy." Where an accident produced a weakened condition of the system, from which cold and pneumonia resulted, it was held that the whole chain of events was caused by the accident as a proximate cause; and within the same principle of law was classed an accident which caused physical injuries which, in turn, resulted in apoplexy and death; but where disease is 1 Sinclair v. Maritime Passengers' Assn. Co., 3 Ellis & El. 478. Dozier v. Fidelity & Casualty Co., 46 Fed. Rep. 446. Schneider v. Providential Life Ins. Co., 24 Wis. 28; s. c., 1 Am. Rep. 157. Trew v. R'y Pass. Assur. Co., 6 H. & N. 839. Mallory v. Travelers' Ins. Co., 47 N. Y. 52; s.c., 7 Am. Rep. 410. 4 • Tennant v. Travellers' Ins. Co., 31 Fed. Rep. 322. Tucker v. Mutual Benefit Life Co., 50 Hun, 50; s. c., 121 N. Y. 718. Isitt v. Railway Passengers' Assur. Co., L. R. 22 Q. B. Div. 504. National Benefit Assn. v. Grauman, 107 Ind. 288. specially excepted from the chain of causation, the rule is otherwise. So, also, where intentional injuries, inflicted by the insured or any other person, are expressly excepted from the operation of the policy, the wider liability of the insurers must be limited by the terms of the contract.2 The provision that the injury insured against must be effected by the specified means, "independently of all other causes," is so unreasonable, indefinite, and repugnant to the main purpose of the contract, that the courts construe it very strictly against the insurers, and sometimes really seem to disregard it altogether. Thus, though the policy excepted death arising from fits, acting directly or jointly with accidental injury, the insurance was held to cover a case where the insured was seized with a fit and fell under the wheels of an engine which caused his death. And in another case, although the policy expressly excepted "injuries from taking poison in any manner," the Illinois court allowed a recovery for death from an overdose of laudanum taken by mistake.* The insured was shot in the back, causing a paralysis which involved the loss of the use of his feet. It was held to be a loss of "two entire feet." The meaning of total disability is considered in Young v. Travelers' Ins. Co., and depends very much upon the wording of the particular policy. By a strict construction of the policy against the insurers, the same court allowed a recovery where the immediate cause of death was fright.? § 192. Exception of Hazardous Employment.Whether one occupation is more hazardous than another 1 Smith v. Accident Ins. Co., 22 L. T. N. S. 861. De Graw v. National Accident Society, 51 Hun, 142. Phelan v. Travelers' Ins. Co, 38 Mo. App. 640. Lawrence v. Accidental Ins. Co., 7 Q. B. D. 216. Fitton v. Accidental Death Ins. Co., 17 C. B. N. S. 122. 4 Tuggle v. Mut. Acc. Asso., 39 Ill. App. 509 (1890). Contra, Hill v. Ins. Co., 22 Hun, 187. |