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Accident" in Personal Accident and Employers' Liability Insurance

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NOTES. 221

provision of the state constitution as to the manner of electing Congress-

men cannot be overridden by an act of the assembly. 7 This may be sup-

ported on the theory either that the constitution-making body is included

in "Legislature," or that members of the assembly acting contrary to

the state constitution are not included in that term. The members of

the assembly in joint convention cannot pass a rule that a mere plurality

of the joint meeting shall elect a United States Senator; 8 only the Legis-

lature acting through its two branches separately is competent to enact

such a law. It has recently been held that an act of the assembly estab-

lishing Congressional districts is not effective until there is a compliance

with a provision of the state constitution for a compulsory referendum

on petition of a certain number of voters. State ex rel. Schroder v. Polley,

127 N. W. 848 (S. D.). On the same reasoning the governor might veto

such an act, if the organic law of the state gives him a veto on legislation.

But where the Constitution vests other than law-making powers in

certain persons designated as the "Legislature," that word should be

taken in its popular sense. A joint convention of the members of the

legislature may elect a Senator. 9 The right to apply for a convention to

propose amendments to the federal Constitution 10 is clearly not legisla-

tive; thus the early applications for a constitutional convention by the

Virginia (1788) and New York (1789) legislatures were not signed by

the governors. 11 It is more doubtful in which class the power of ratifying

such amendments belongs but the gubernatorial approval seems not to

have been deemed necessary. The ratification of the Fourteenth Amend-

ment was formally approved by governors of only fifteen states. 12 No

instance is known in which the ratification was vetoed. In New Jersey,

the governor vetoed the attempted rescission of. ratification and it was

passed over his veto. 13 The consent of the legislature to the formation

of new states out of the territory of old ones 14 and to the purchase of

sites for forts, etc. 16 must also be taken as belonging to this latter class.

The Meaning of "Accident" in Personal Accident and Em-

ployees' Liability Insurance. Most personal accident insurance

policies cover "injuries effected through external, violent, and accidental

means." While the courts have given little effect to the words " external "

7 This question has arisen several times in connection with contested seats in the

House of Representatives. The reports of the committee of elections and action by the

House are neither uniform nor clear; but it must be confessed that authority is pretty

evenly divided. See Shiel v. Thayer, 1 Bartlett, Contested Election Cases, 349; Bald-

win z>. Trowbridge, 2 id. 46; Donnelly v. Washburn, 1 Ellsworth, Contested Election

Cases, 439.

8 John P. Stockton, Taft, Senate Election Cases 264.

9 Fitch and Bright v. Lane and McCarty, Taft, Senate Election Cases 164.

10 U. S. Const., Art. V.

11 See 1 Am. State Papers (Misc.) 6, 7. Many but not all of the more recent ap-

plications have been formally approved by the governors, see 42 Cong. Record 5514.

12 See 2D Sess., 40TH Cong., 2 Sen. Exec. Docs. No. 75; 6 Richardson, Mes-

sages and Papers of the Presidents, 657-660.

13 See Flack, Adoption of the Fourteenth Amendment, 167.

14 U. S. Const., Art. IV, sec. 3, 1.

15 U. S. Const., Art. I, sec. 8, 17.

222 HARVARD LAW REVIEW.

and "violent," 1 difficult questions continually arise depending on the

interpretation of "accidental." 2 It is agreed that in these contracts

the word should be given its popular meaning, 3 but the definition of acci-

dent 4 does not furnish an adequate legal test. 5 Often the question is

left to the jury, 6 usually because there is doubt as to what the circum-

stances were. Whether given circumstances constitute an accident or

not should, it is submitted, be a question for the court.

Three distinct classes of problems must be considered. First, what

is the nature of an accident? It is not necessarily a single, sudden oc-

currence. 7 An accident to the insured may come from the operation of

a natural force, 8 the act of an animal, 9 the act of another human being,

even if injury is intended by him, 10 or a slip by the insured himself. 11

And it may be caused by the negligence, 12 but not by the design, 13 of the

insured. Although judges often say that the event must be unexpected

and unforeseen by the insured, 14 the actual holdings bar nothing short of

mishaps foreseen and recklessly disregarded. 15

The second problem is whether there can be a recovery for unexpected

1 See Vance, Insurance, 569.

2 Policies often contain express provisions which prevent such problems as are

discussed in this note from arising. For a common form of policy, see Richards,

Insurance, 764.

3 See Schmid v. Ind., etc. Assn., 42 Ind. App. 483, 495; U. S., etc. Assn. v. Newman,

84 Va. 52, 58.

4 The definition most often quoted is that of Webster's Dictionary, " an event

that takes place without one's foresight or expectation." For a collection of defini-

tions, see 30 L. R. A. 206, note.

6 See Vance, Insurance, 566.

6 See U. S., etc. Assn. v. Barry; 131 U. S. 100; Bailey v. Interstate Casualty Co.,

8 N. Y. App. Div. 127.

7 Western, etc. Assn. v. Smith, 85 Fed. 401 (abrasion of skin from wearing new

pair of shoes).

8 Northwestern, etc. Assn. v. London, etc. Co., 10 Manit. 537 (freezing); Manu-

facturers' Accident Indemnity Co. v. Dorgan, 58 Fed. 945 (drowning).

9 Farner v. Mass., etc. Assn., 219 Pa. St. 71 (dog bite); Omberg v. U. S., etc. Assn.,

101 Ky. 303 (insect bite).

10 Fidelity and Casualty Co. v. Johnson, 72 Miss. 333 (hanged by mob); American

Accident Co. v. Carson, 99 Ky. 441 (murdered).

11 Bailey v. Interstate Casualty Co., supra (slip in injecting hypodermic needle);

American Accident Co. v. Reigart, 94 Ky. 547 (choking while eating).

12 Travelers' Ins. Co. v. Randolph, 78 Fed. 754; Schneider v. Provident Life Ins.

Co., 24 Wis. 28. Contra, Morel v. Miss. Valley Life Ins. Co., 4 Bush (Ky.) 535. This

case seems to stand alone. See 30 L. R. A. 207, note.

13 Whitlatch v. Fidelity and Casualty Co., 149 N. Y. 45 (suicide); Laessig v. Trav-

elers' Protective Assn., 169 Mo. 272 (suicide). But suicide while insane is an accident.

Accident Ins. Co. v. Crandal, 120 U. S. 527.

14 It has also been said that the event must not be one more likely to occur than

to fail. See Western, etc. Assn. v. Smith, supra, 405.

16 Apparently the only cases denying recovery for the results of an external violent

event on the ground that it was foreseen are those in which the insured attacked a

man under circumstances in which injury to himself was well-nigh sure to result. See

Fidelity and Casualty Co. v. Stacey's Executors, 143 Fed. 271; Taliaferro v. Travelers'

Protective Assn., 80 Fed. 368. Recovery has been allowed where the insured started

a fight without great apparent danger to himself. Union, etc. Co. v. Harroll, 98 Tenn.

591; Ins. Co. v. Bennett, 90 Tenn. 256. And in some cases the question whether in-

jury was foreseen or not seems not to have been considered. See Richards v. Travelers

Ins. Co., 89 Cal. 170. Drowning during a very perilous attempt to save life has been

held an accident. Tucker v. Mutual Benefit Life Co., 50 Hun (N. Y.) 50 (affirmed

121 N. Y. 718). See also Da Rin v. Casualty Co of America, 108 Pac. 649 (Mont.);

Joyce, Insurance, 2863.

NOTES. 223

injuries arising from a voluntary movement, carried out as expected. 16

While some courts regard it as sufficient that the result of the movement

is something unexpected and unusual, 17 others have held that the phrase

"accidental means" contemplates a casualty distinct from the injury

itself. 18 There is more reason for calling accidental those injuries due to

the rupture of normal tissues than to the rupture of tissues so diseased

that they would of themselves sooner or later give away, but this dis-

tinction seems not to have been taken. 19 Cases closely allied to this are

those involving unintentional injuries from poison and unsound food. 20

These questions are all extremely nice, but as the policy should be con-

strued most strongly against the underwriter, 21 all the contingencies

mentioned in this paragraph should be covered as "injuries effected

through accidental means."

The third problem is whether the policy covers disease. In personal

accident insurance it is well settled that disease contracted without

violence is not covered. 22 But under an employers' liability policy

against loss "for damages on account of bodily injuries accidentally

suffered by employees of the assured," a recovery was recently allowed

where an employee was infected with glanders. Hood & Sons v. Mary-

land Casualty Co., 206 Mass. 223. 23 As it is impossible to differentiate

between diseases, like glanders, caused by taking bacteria into the

system through the skin, and diseases caused by the germs' entering

the system through the mouth or nostrils, the necessary result of this

decision would be to allow recovery for diseases of the latter kind,

whenever the employer is responsible for them. 24 This decision seems

correct. While in personal accident insurance, the idea of external vio-

lence, even if not expressly mentioned, is the basis of the peril insured

against, 25 in employers' liability policies the basis is. liability for torts.

Furthermore, one of the commonest meanings of "accidentally" is "un-

16 The injuries in question include sprains, ruptures of blood vessels and intestines,

and injuries to the heart.

17 See Hamlyn v. Crown Accidental Ins. Co., [1893] j Q. B. 750 (dislocation of carti-

lage); Horsfall v. Pacific, etc. Co., 32 Wash. 132 (dilation of heart).

18 See Clidero v. Scottish, etc. Co., 29 Scot. L. R. 303 (displacement of colon);

Shanberg v. Fidelity and Casualty Co., 158 Fed. 1 (fatty degeneration of heart).

19 See Feder v. Iowa, etc. Assn., 107 la. 538, 542.

20 But few of these cases have come up. As far as decided, the law seems to be that

injury from a mistake as to the amount taken is covered, Baylis v. Travellers' Ins. Co.,

113 U. S. 316; but not an injury due to misjudging the effect of a known amount,

Carnes v. I. S. T. M. Assn., 106 la. 281; or due to unsound food thought to be sound.

See Maryland Casualty Co. v. Hudgins, 72 S. W. 1047 (Tex.), and in the court above,

76 S. W. 745, 748 (Tex.); American Accident Co. v. Reigart, 94 Ky. 547, 550.

21 This doctrine has been repeatedly mentioned in connection with this very point

in accident insurance. See Northwestern, etc. Assn. v. London, etc. Co., supra, 543;

Paul v. Travelers' Ins. Co., 112 N. Y. 472, 479.

22 See Sinclair v. Maritime, etc. Co., 3 E. & E. 478 (sunstroke); Dozier v. Fidelity

and Casualty Co., 46 Fed. 446 (sunstroke).

23 Accord Columbia, etc. Co. v. Fidelity and Casualty Co., 104 Mo. App. 157 (kidney

disease). The same result has been reached under the English Workmen's Compen-

sation Act, where the words are "injuries by accident." Brintons, Ltd. v. Turvey,

[1905] A. C. 230 (anthrax); Higgins v. Campbell & Harrison, Ltd. [1904] 1 K. B. 328

(anthrax).

24 But see Brintons, Ltd. v. Turvey, supra, 233; Higgins v. Campbell & Harrison,

Ltd., supra, 338.

25 See Sinclair v. Maritime, etc. Co., supra, 485.

224 HARVARD LAW REVIEW.

intentionally." 26 To be sure, interpreted thus, the word "accidentally"

adds nothing to the meaning of the phrase, since the employer incurs no

liability for injuries intentionally inflicted by an employee upon himself.

But the language does not unambiguously narrow the peril to what would

be an "accident" in personal accident insurance, and being capable of

two fair constructions, should be construed in favor of the insured. 27

The Doctrine of Claflin v. Claflin. In a recent case the court,

feeling itself bound by the dictum in Nichols v. Eaton, 1 adopted the doc-

trine of Claflin v. Claflin, 2 and permitted the testatrix to provide for

the postponement of the enjoyment of a present vested gift until four

years after the majority of the legatee. King v. Shelton, 38 Wash. L. R.

714 (D. C, Ct. App., Nov. 2, 1910). The doctrine enunciated in the

principal case has been much criticized. In the first place, it is said

that it tends to infringe upon the rule against perpetuities; but this is

not so, for that rule determines the time within which interests must

vest, but does not govern the postponement of enjoyment, the propriety

of which is properly considered in connection with the doctrine of re-

straints on alienation. 3

In England it is well settled that when one is entitled absolutely to

property, any direction postponing its transfer or payment to him is

void, on the ground that it is contrary to public policy that a man having

the entire interest in property should be restrained in the use or disposi-

tion of it. 4 But an exception has been made in the case of married

women, for whose benefit during coverture a restraint is allowed even

upon an estate in fee simple. 5

In many of the United States the strict English rule has been departed

from, and restraints in the form of spendthrift trusts have been allowed. 6

The doctrine of the main case permitting a further restraint on aliena-

tion has not been widely accepted, but has become firmly established in

Massachusetts 7 and Illinois, 8 and has been recognized in the federal

courts. 9

26 See Webster's Dictionary.

27 This general principle of construction has been recognized in employers' liability

insurance, as well as other branches. See Columbia, etc. Co. v. Fidelity and Casualty

Co., supra, 167; Cornell v. Travelers' Ins. Co., 66 N. Y. App. Div. 559, 562. But

the full argument advanced in the text above has not been mentioned in any case.

The principal case merely followed the English decisions under the Workmen's Com-

pensation Act, and in Columbia, etc. Co. v. Fidelity and Casualty Co., supra, the

court intimated its disapproval of the accident insurance cases barring disease. See

Columbia, etc. Co. v. Fidelity and Casualty Co., supra, 172, 173.

1 91 U. S. 716, 725.

2 149 Mass. 19.

3 Armstrong v. Barber, 239 111. 389, 397.

4 The rule is equally applicable whether the gift is to a natural person, Saunders v.

Vautier, 4 Beav. 115; s. c. Cr. & Ph. 240; or a charity, Wharton v. Masterman, [1895]

A. C. 186.

6 Baggett v. Meux, 1 Phil. 627.
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6 See Gray, Restraints on Alienation, 2 ed., 177 a.

7 See Dunn v. Dobson, 198 Mass. 142, 146.

8 Lunt v. Lunt, 108 111. 307; Wagner v. Wagner, 244 111. 101.

3 Stier v. Nashville Trust Co., 158 Fed. 601 {per Lurton, J.). Some jurisdictions

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Accident" in Personal Accident and Employers' Liability Insurance