would be a question for the jury, unless the policy contained its own classification. An employment or occupation does not refer to some unusual and incidental act, which a person may chance to be engaged in temporarily, but to his regular and usual occupation or calling in life." § 193. Injuries excluded of Which there is no Visible Mark on the Body, the Body Itself in Case of Death not being Deemed such Mark.-The courts are not inclined to pay very much respect to the provisions of the policy which purport to control the laws of evidence, and the question of proof of accidental injury in case of any disputed material fact must go to the jury. They will decide the fact upon the evidence before them, without much regard to any rule of evidence that may be specified in the contract.3 Under the requirement that the evidence of injury must be direct and positive, the character of the injury itself may furnish sufficient evidence where there is no presumption that the injury was intentionally inflicted.* § 194. Poison, etc.- Voluntary or involuntary taking of poison or contact with poisonous substances or inhaling of any gas or vapor. This exception covers the accidental taking of poison.5 The courts have construed this clause very strictly against the insurers, and in a recent case it was even held that "breathing gas" involuntarily was not the "inhaling of gas," though the distinction seems to be a very fine one. In another case it was held that the word "poison" did not apply to death from 1 Eggenberger v. Guarantee Mutual Am. Rep. 410. Paul v. Travelers' Accident Assoc., 41 Fed. Rep. 172. Ins. Co., 112 N. Y. 472; s. c., 8 Am. Tucker v. Mutual Benefit Life Co., 50 St. Rep. 758. Hun, 50. Knapp v. Preferred Mutual Accident Assoc., 53 Hun, 84. Travellers' Ins. Co. v. McConkey, 127 U. S. 661. Utter v. Travelers' 2 Stone v. U. S. Casualty Co., 34 N. Ins Co., 65 Mich. 545; s. c., 8 Am. St. J. L. 371. Peck v. Equitable Accident Asso., 52 Hun, 255. Cited with approval, in O'Brien v. Home Ben. Society, 117 N. Y. 319. Reynolds v. Equitable Acc. Assoc., 59 Hun, 15. Mallory v. Travelers' Ins. Co., 47 N. Y. 52; s. c., 7 Rep. 913. Cole v. Accident Ins. Co., 61 L. T. N. S. 227 (1889). Contra, Mut. Acc. Assoc. v. Tuggle, 39 Ill. App. 509 (1890). Paul v. Travelers' Ins. Co., 112 N. Y. 472; s. c., 8 Am. St. Rep. 758. a malignant pustule resulting from the touch of an abraded part of the lips with a putrid animal substance, but that the word was confined to the internal reception of a poisonous substance. It was, however, held, that the pustule in question amounted to a disease, and so brought the case within another exception in favor of the company.1 $195. Exception of Injuries Resulting from Violating Law. The meaning of this clause was considered under the subject of the life policy. The exemption was construed in a recent case where it was held that an accident from slipping upon frozen ground while returning from hunting on Sunday, in violation of law, was not covered by the policy, and the insurer was discharged.2 § 196. Exception of Injuries Happening from Voluntary Exposure to Unnecessary Danger.-This provision modifies the rule which would otherwise prevail, that the negligence of the person insured constitutes no defense to the insurers. This exception as specified in the policy is applicable to a death where the insured is struck by a railroad train while walking on the track. But another court was of the opinion that it was not applicable to a death where the insured stepped from the train through a hole in the floor of a bridge, where the train temporarily stopped, the existence of which hole he had no reason to suspect.* Where the exemption was worded to except injuries from exposure to obvious risk," the English court gave the following rule: "Two classes of accidents are excluded from the risks insured against; viz., (1) accidents which arise from an exposure by the insured to risk of injury, which risk is obvious to him at 1 Bacon v. U. S. Mut. Accident Assn., 123 N. Y. 304; s. c., 20 Am. St. Rep. 748. ? Duran v. Standard Life and Accident Ins. Co., 20 Ins. L. J. 1035 (Vt. Apl. 14, 1891). Mass. 175; s. c., 45 Am. Rep. 316. Burkhard v. Travellers' Ins. Co., 102 Pa. State, 262; s. c., 48 Am. Rep. 205. Scheiderer v. Travelers' Ins. Co., Tuttle v. Travellers' Ins. Co., 134 58 Wis. 13; s. c., 46 Am. Rep. 618. the time he exposes himself to it; (2) accidents which arise from an exposure by the insured to risk of injury, which risk would be obvious to him at the time, if he were paying reasonable attention to what he was doing.” 1 This question will oftentimes be one of fact for the jury.2 197. Entering or Trying to Enter or Leave a Moving Conveyance Using Steam as a Motive Power, etc.—This provision is similar in principle to the last, and aims to limit liability to those cases where the assured has been fairly prudent.3 § 198. Requirement that the Insured shall Use all Due Diligence for Personal Safety and Protection. The burden will be upon the insurer to show that due diligence was not exercised. If the insured is killed by falling from the second story of a barn which he is having built, in consequence of the breaking of a joist, this does not conclusively show a breach of the stipulation; but the question of due diligence is properly left to the jury.5 $199. Insurance against Injuries received while Traveling.-Some policies are confined to an insurance against loss while traveling by public or private conveyances. Under this restriction the assured was allowed to recover for an injury received by a fall on a sidewalk while walking from a steamboat landing to a railway station, this walk being usual for travelers on that route, although he might have ridden in a hack; but, generally speaking, walking could not be held to be a "traveling by public or private conveyance."7 1 Cornish v. Accident Ins. Co., L. R. 23 Q. B. D. 453 (1889). 2 Shaffer v. Travelers' Ins. Co., 31 Ill. App. 112. Mair v. Railway Passengers' Assur. Co., 37 L. T. N. S. 356. Miller v. Travelers' Ins. Co., 39 Minn. 548. Hull v. Equitable Accident Assn., 41 Minn. 231. Bon v. Railway Passengers Assur. Co., 56 Iowa, 664; s. c., 41 Am. Rep. 127. 6 CHAPTER XIX. THE MARINE POLICY.1 THE purpose of marine insurance, as was pointed out in Chapter I., is to enable the merchant or ship-owner to carry on his ventures undisturbed by that element of uncertainty which is brought in by the dangers of navigation. Another element of uncertainty, that arising from the fluctuation of the market, the merchant or ship-owner retains for himself. The combination of these two uncertainties is affected by a third; namely, the ordinary variation in the length of a voyage, which may arise either from accident or without accident, inasmuch as one vessel may be a quicker sailer than another, or may meet with better winds or fewer calms, or may be more skillfully or more fortunately navigated. A delay arising from such causes may occasion loss or gain as the market chances to go up or down. If there be a gain, this must not belong to the underwriter. The underwriter, therefore, cannot be asked to pay for the loss. The chances of a longer or a shorter voyage, as affecting the market, must remain with the assured. Again, it is of the essence of insurance that it shall be on both sides a fair speculation. The underwriter must have a chance of gaining to counterbalance his risk of loss. It follows that the losses he has to pay for must be such as may, not such as must, happen. This excludes ordinary wear and tear for damage necessarily suffered in driving the ship through the water by sail or steam, and this notwithstanding the degree of such damage may vary with the variations of the weather, and the winds, and other incidents common to all voyages; it likewise excludes loss arising from natural wastage, corruption 1 In the following discussion of the clauses of the policy I have drawn heavily upon the practical treatises on Marine Insurance by MacArthur and Paterson v. Harris, 1 B. & S. 353. through lapse of time, heating from the confined atmosphere of the hold, and other causes inevitable under the given conditions. These are matters which a merchant can with more or less accuracy estimate beforehand, and they must be taken into account in determining the market price of his ventures; or, at all events, the underwriter does not make himself responsible for them. For the same reason, an underwriter must in no case be liable for losses caused by the bad faith or misconduct of the assured himself, since such a liability would destroy the fairness of the speculation. The marine policy, a specimen of which is given in the appendix, is found upon examination to contain three distinct stipulations. The first and principal is the promise on the part of the insurers that they will take upon themselves certain specified perils or causes of loss which may come to the hurt or detriment of the thing insured, which is specified, for a voyage or for a term which is likewise specified. A second stipulation is what is called the "sue and labor" clause, which is an encouragement to the assured to use exertion in the saving of his property when in peril, by a promise to contribute to the expenses he may thereby incur; and, third, the modern addition known as the memorandum clause, which sets a limit to these two promises by exempting the insurer except in events therein named from claims below a certain percentage or from claims for damage to certain kinds of goods which are regarded as exceptionally hazardous. The promise of the insurers is given to a person named or described; it is given whether the thing insured is at the time lost or not lost; it has relation to a subject matter or thing which must be specified; this thing at risk is the ship, or in the ship, and under the command of a master; it is for a voyage or term marked out, together with the precise point of place or time at which the voyage or term commences and terminates; the amount of liability may be left open, or it may be fixed by an agreed valuation; and, lastly, the promise is a guarantee against loss from certain specified perils subject to certain conditions or warranties. $ 200. Name of the Assured.-All persons except alien enemies, that is, subjects of a foreign state at war with |