belonging to Y, the loss will fall proportionately on X's and Y's insurance companies, and on the other interests in the common venture. The exact scope of the doctrine of general average loss is a matter of considerable difficulty and prolixity in admiralty law.

95. Total losses, actual and constructive.-Actual total loss in marine insurance is virtually the same as in fire insurance. When the vessel is rendered worthless to the insured she becomes a total loss. She may sink without being a total loss, if she can be raised by an expenditure of less money than she is worth." On the other hand, she may stay on the surface and yet be reduced to a worthless mass.67 Valued policies frequently exist by the agreement of the parties in marine insurance. These have been explained in connection with fire insurance.® Probably our American legislators borrowed the idea of valued policy laws in fire insurance from this practice of marine insurance companies.

68

Constructive total loss. In the United States, a constructive total loss exists when the injuries insured against have rendered the ship worth less than fifty per cent of what her value would be if restored to the condition in which she was before she was injured. This "fifty per cent rule" is not accepted in England. There, constructive and actual total losses differ but slightly. The English rule might be called a hundred per cent rule. The cost of recovery must exceed the value when recovered.

66 Sewall v. U. S. Ins. Co., 11 Pick. 90 (Mass.).

67 Bullard v. Roger Williams Ins. Co., Fed. Cas. No. 2, 122.

96.

Abandonment.-In case of constructive total loss the insured may recover on the basis of the partial loss sustained, or he may abandon the damaged ship to the underwriter and recover the same amount as in case of a total loss. This doctrine of abandonment is peculiar to marine insurance, though, out of abundant caution, many fire policies expressly forbid abandonment. The insured is thus given an option to abandon or not, as he sees fit. The insurer is given no election, though in many cases the marine insurance company declines to accept the ship when abandoned. In doing so it acts at its peril. If the insured can show that abandonment was proper, the insurer can be held as for a total loss, though only for the partial loss if the refusal was proper. It is obvious that, on abandonment, the insurer, by virtue of the doctrine of subrogation, succeeds to the rights of the insured against any third party who may be responsible for having caused the loss of the insured.

97. One-third off new for old.-If the side of an old vessel is crushed in there may be but one practicable way to repair her. Let us assume this mode of repair requires the use of new materials which will make her worth more than before the accident. Accordingly, the rule is established that in case of partial loss, "one-third off new for old" is allowed the insurer. For example, if it costs $300 to repair her, the insurer is liable for but $200 regardless of whether the ship has been sailing for one or a hundred years."9

98. Sue and labor clause.-If the owner of a house 69 Humphreys v. Union Ins. Co., Fed. Cas. No. 6871.

fears that an extraordinarily hot fire in his stove may cause the house to burn and proceeds to drench the room with water to prevent the fire, he can recover nothing from the insurer of the house and furniture because no hostile fire has existed.

In marine insurance the rule is otherwise. If it is necessary for the insured "to sue, labor, and travel for, in, and about the defense, safeguard and recovery" of the property insured, the insurance company agrees to indemnify the insured as in case of a loss of an equal amount. Under this clause, the insurer may be liable for more than the amount stated in the policy, where a loss and the expenses of the attempt to avoid the loss exceed the stated amount of insurance.

There can be no recovery under this provision unless the work was done by the assured or one in his employment, and to prevent or lessen a loss for which the insurer would otherwise be liable.70

70 Kidston v. Empire Marine Ins. Co., L. R. 2 C. P. 357 (Eng.).

CHAPTER XII.

ACCIDENT INSURANCE.

99. The accident insurance business.-The accident insurance business originated in England and the United States in the middle of the nineteenth century. At first it was designed, primarily, to insure against risks of travel, and grew in importance along with railroads and other means of rapid transportation, together with the wide use of dangerous machinery. The significance of this branch of insurance may be judged by the fact that accident companies received over twenty million dollars in premiums in 1911 in the United States alone. Though Lord Campbell's Act and kindred legislation have provided for the recovery of damages for death by wrongful act, the amount of recovery is generally limited. Many items of loss are not included in fixing the damages in proceedings under these acts. Accident insurance is a necessary supplement for adequate protection.

Endless litigation has resulted from the attempt to define the term "accident" and the excepted cases which the insurance company does not pretend to

cover.

100. What is an accident?-It is not easy to determine what is and what is not an accident even in the popular sense of the term. It is well said that acci

dents are always happening to careless people, though but seldom to persons of great caution. A reconciliation of the authorities is out of the question. Accidents cannot be very accurately classified because infinite in variety and number. Where the insured took out accident insurance and then met death by lynching at the hands of a mob, his death was deemed the result of accident in Mississippi."1 In like manner, where the insured intentionally trimmed a corn, but unexpectedly caused bloodpoisoning, which resulted in his death, it was held that his death was caused by accident.72 Taking poison by mistake has been held to be one form of accident, though if one intends to take as much as he actually took, but is mistaken merely as to the effect of the size of dose taken, no accident has occurred.73 Where one, sick and half asleep, became entangled in his nightshirt in an effort to dress hurriedly, and broke a blood vessel in his attempt to extricate his head, recovery was denied on the ground that the injury resulted from voluntary movements.74 In like manner, the insurer was held not liable where death was caused by peritonitis resulting from the regular movements of a bicycle.75 Accident, for this purpose, may be the result of the intentional act of another. For example, take the case of lynching already mentioned in this section.

External and violent means. The accident insur

71 Fidelity & Casualty Co. v. Johnson, 72 Miss. 333, 30 L. R. A. 206.

72 Nax v. Travelers' Ins. Co., 130 Fed. 985.

73 Carnes v. Iowa, etc., Assn., 106 Iowa 281, 76 N. W. 683.

74 Smouse v. Iowa, etc., Assn., 118 Iowa 436, 92 N. W. 53.

75 Appel v. Aetna Ins. Co., 83 N. Y. Supp. 238, 180 N. Y. 514.