the analogies of marine and fire insurance, the fact that the negligence of the insured contributes to bring about his death will not bar his recovery, so long as the negligence is not so extreme as to lead to the conclusion that the death was intentional.

SECTION 4. ACCIDENT INSURANCE.

§ 125. Language of policy. The usual form of accident insurance policy protects the insured "against the effect of bodily injury" caused "by external violent and accidental means." The desire on the part of the courts to give the largest possible reasonable construction to these words, and to make as broad as possible the classes of case that they have thought ought to be included within the policy, has led to interpretations being put on these words that are very far from usual or what one would naturally put upon them and they require a somewhat careful examination.

§ 126. External. By an external means is meant a means or cause coming from outside the body, even though the injury it produces is within the body. Thus, cases of death or injury caused by accidentally inhaling gas (33), or by drowning (34), are deaths by external means, although the way the death is brought about in each case is of course by the action upon the lungs. Accident policies sometimes except death or injury caused by inhaling gas. This exception has been construed by the courts to apply only to a conscious or intentional inhaling of gas,

(33) Paul v. Insurance Co., 112 N. Y. 472.

(34) The Indemnity Co. v. Dorgan, 58 Fed. 945.

as for an operation or suicide, and not to cover cases where it is accidentally taken in during the night and breathed while asleep, or in some other way taken by mistake (35). The same principle has been applied where the policy excepted death resulting from poison, the insured being allowed to recover where the poison was taken by mistake (36). Policies also sometimes have a clause that there shall be no recovery, unless there shall be some external mark of injury. Here it is held that any mark, however slight, is sufficient. The proviso has no application at all in cases of death, since the existence of death itself is a sufficient manifestation of the fact that injury has been received.

§ 127. Violent. A violent means of injury is any kind of physical force, however slight. Thus, where the insured brought rotten meat in contact with his face and died from a malignant pustule in the meat, this was held to be a death by violent means (37). So, where the insured injured his leg in stooping over to pick up a marble, that exertion was held to be a sufficient violence to come within the terms of the policy (38); and so a sting from a wasp (39). Whether the force must be physical, as stated above, is a point on which the cases are divided. In one case a runaway horse came extremely close to the insured, who was not touched but was badly frightened

(35) Insurance Co. v. Dunlap, 160 Ill. 642.
(36) McGlother v. Insurance Co., 89 Fed. 685.
(37) Higgins v. Campbell [1904], 1 K. B. 328.
(38) Hamlyn v. Insurance Co. [1893], 1 Q. B. 750.

(39) Amberg v. Accident Ass., 101 Ky. 303.

and died from the fright within a short time thereafter, and a recovery was allowed on the policy (40).

§ 128. Accidental means. Accidental means or cause has been defined as a cause occurring unexpectedly or unforeseeably and without the design or intent of the person injured. Thus, if the insured is intentionally injured by a third person, as where the insured was hanged by a mob, it is, so far as he is concerned, accidental, and recovery may be had on the policy (41). So, if there is no intention at all on the part of the insured, as in the case where he committed suicide while insane (42), this latter of course being subject to the same qualifications as discussed in the preceding section on life insurance.

§ 129. Same: Accidental distinguished from accidental means. It is necessary to distinguish carefully between an accidental death and a death by accidental means. Only the latter is covered by the language of the policy. This distinction is well illustrated by a Scottish case. In this case the insured, who had just risen from his bed and was in the act of putting on his stockings, died suddenly. The cause of his death was pressure on the heart, resulting from the fact that his colon had fallen out of place and become folded. The court refused to allow a recovery, using the following language: "A person may do certain acts the result of which may produce unforeseen consequences and may produce what is commonly called accidental death; but the means are exactly

(40) McGlinchey v. Casualty Co., 80 Me. 251.
(41) Insurance Co. v. Johnson, 72 Miss. 333.
(42) Insurance Co. v. Crandal, 120 U. S. 527.

what the man intended to use and did use.

means were not accidental but the result might be acci-
dental.
The man was just doing what he meant
to do and apparently an unexpected result happened-the
man's death" (43). The same distinction has been made
in several American cases. Thus, where the insured was
exercising with Indian clubs, swinging the clubs in the
ordinary way and just as he intended to do, and while so
swinging there occurred the unexpected rupture of a
blood vessel, it was held that the cause of the injury was
not an accident and not within the terms of the policy
(44). So, where the insured knew himself to be very ill
with consumption and shut a window that stuck, and the
result was a hemorrhage from which he bled to death,
the death was held not to be a death by accidental means,
if he did physically just what he tried to do, and the only
difference was that it produced a result that he did not
anticipate or intend (45). On the other hand, in a leading
case in this country, the insured jumped off a high plat-
form and landed on the ground in such a way as to cause
injuries, for which he attempted to recover on his acci-
dent insurance policy. The court instructed the jury that,
if he jumped and alighted as he intended to do, nothing
unexpected or involuntary occuring affecting his body
during the time from the moment he jumped until after
he alighted, then he could not recover on the policy, even
though an injury followed which he did not expect; but
if, on the other hand, while jumping or alighting, there

(43) Clidero v. Insurance Co., 29 Scot. Law Rep. 303.
(44) McCarthy v. Insurance Co., 8 Ins. L. J. 208.
(45) Feder v. Travelling Assoc., 107 Iowa, 538.

occurred from any cause any unforeseen or involuntary turn or strain of the body which brought about the alleged injury, in that case the injury was brought about by accidental means and a recovery could be had upon the policy (46). The Hamlyn case mentioned before (note 38) is another illustration of the same principle.

§ 130. Accident followed by disease. It is not necessary in order to bring the injury within the meaning of the policy that it should have been directly produced by external means. It is enough if the injury can be traced to an accident as an effective cause of it, even though it is traced through the intervening agency of a disease, which in turn was brought about by the accident. Thus, where the insured bought a new pair of shoes, which caused an abrasion on his toe through which blood poison set in, which resulted in death, this was held to be a death that was covered by the policy. The fact that the immediate cause of it was the blood poisoning was held to be immaterial, since the blood poisoning was a disease due to the abrasion which was produced by accidental, violent, and external means (47). In another case the insured slept on his hand, which rested on the rail at the head of his bed, for so long that the periostium of some of the bones in his hand was injured. This in turn caused periostitis. He sued on an accident insurance policy for this injury, and the court allowed a recovery on the same principle as in the preceding case (48). Both of these cases also offer

(46) Accident Association v. Barry, 131 U. S. 100. (47) Travelers Assn. v. Smith, 85 Fed. 401.

(48) Insurance Co. v. Fitzgerald, 165 Ind. 317.