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did several other things becoming and proper in a successful speculator. The other charges relate to other federal officers not judicial. Mr. Bates pro

fesses his ability to make good his charges before a congressional committee of investigation, and, considering the nature of the charges, and the positions of the accused, he should have the opportunity to do so; or, failing, to prove himself to be a gross calumniator. So far as Chief Justice McKean is concerned, we are not prepared to believe any charges against him of corruption. We have known him for years, and always as an upright, honorable man; but we nevertheless believe that he has been exceedingly indiscreet and impolitic in his administration of judicial affairs in Utah. The charges, however, come from such a source, and are of such a nature, that a searching investigation is absolutely necessary.

There is a very considerable and very just complaint at the dilatory operations of the Mexican Claims Commission. This commission was organized under the convention of 1868, but in the five succeeding years it has really accomplished very little. It is now nearly a year since Dr. Lieber, the umpire, died, yet his place has not been filled, nor, so far as we know, has any effort been made to fill it. This inexcusable delay is gross injustice to both the American and Mexican claimants- many of whom have their all at stake in the claims before the commission, and to them a prompt decision is of the utmost importance. But the commissioners idle away their time without any apparent ambition beyond drawing their salaries and protracting to the uttermost the existence of the commission. The secretary of State has ordered, it is said, the United States commissioner to go to Washington with the intention of getting the commission again at work. We hope he will succeed.

However little honor the late Lord Westbury won or deserved as Lord Chancellor, his labors as a law reformer are worthy of all praise. At a time when law reforming was not so fashionable as now, he advocated and effected some very valuable improvements in the jurisprudence of England. He was the first chairman of the Council of Legal Education, and president of the Juridical Society. He inaugurated the measures for the improvement of the transfer of land. He brought about a bankruptcy law, and was mainly instrumental in abolishing punishment for debt, and in conferring equity jurisdiction upon county courts. He was an earnest advocate for a change in the final court of appeal, for a thorough revision of the statute law, and for a digest of the entire body of the English law. While his rashness, indiscretion, and ill-timed sarcasm, marred almost every step in his judicial career, his name deserves to be honorably associated with many admirable meas

ures.

**

ACCIDENT INSURANCE.

What is an accident? The term, as used in policies, has been several times defined in the adjudicated cases. It is "any event which takes place without the foresight or expectation of the person acted upon or affected by the event." Withey, J., in Ripley v. Railway Passengers' Assurance Co., U. S. C. C., W. D. of Mich. (1870); reported in 2 Big. Cas. 738. The same definition is substantially adopted in Maryland. Prov. Life Ins. Co. v. Martin, 32 Md. 310. It is "an unusual and unexpected result attending the performance of a usual and necessary act." It is "any unexpected event which happens as by chance, or which does not take place according to the usual course of things." North American Ins. Co. v. Burroughs, 28 Leg. Int. 342; S. C., 69 Penn. St. 43. It is something which takes place without any intelligent or apparent cause, without design, and out of course. Mallory v. Travelers' Ins. Co., 47 N. Y. 52. "Some violence, casualty, or vis major is necessarily involved" in the term "accident." Cockburn, C. J., in Sinclair v. Maritime Passengers' Ass. Co., 3 El. & E. 478. It means, in short, in the insurance policies, an injury which happens, by reason of some violence, casualty or vis major, to the assured, without his design or consent or voluntary co-operation. "Violent and accidental" are equivalent in meaning to "accidental violence" (Ripley v. Railway Passengers' Assurance Co., ut supra), and every injury caused by accident, save those specially excepted by the policy, is covered by it. Prov. Life Ins. & Inv. Co. v. Martin, ut supra. A full discussion of what an accident is, will be found in Schneider v. Prov. Life Ins. Co., 24 Wis. 28.

One of the earliest cases involved the question whether drowning was an injury caused by accident through some outward and visible means. The court of exchequer, in 1860, held that drowning was not such an injury (Trew v. Railway Passengers' Assurance Co., 5 H. & N. 211), but the exchequer chamber reversed the decision, and held that death by drowning while bathing was within the policy (6 H. & N. 839), and it was for the jury to say whether the assured died from action of the water or from natural causes. In 1870, the question arose again in the case of a man who, while bathing in a pool only a foot deep, suddenly became insensible and fell face downward into the water and died. The condition of the body showed that he breathed after the fall, and the court held that death was caused by the action of water on the lungs, and that the falling was an accident within the policy. Reynolds v. Accidental Ins. Co., 18 W. R. 1141; S. C., 22 L. T. N. S. 820. It has always been the custom of American companies to regard such death as accidental, and the question has never been before any American court of final jurisdiction. So where an accidental wound caused the assured to fall into the water and be drowned, the death was accidental. Mallory v. Travelers' Ins. Co., 47 N. Y. 52.

Death from the effect of a sunstroke is not death from an accident, but is caused by disease. Sinclair v. Maritime Passengers' Ass. Co., 3 El. & E. 478 (1861). In American policies, sunstroke is usually excepted in express terms. Death or disability caused by bodily infirmity or disease is also excepted; but where an external injury immediately causes disease, the policy covers it. In Fitton v. Accidental Death Ins. Co., 17 C. B. N. S. 122 (1861), the deceased fell with violence on the floor of his room, and thereby produced an im

mediate rupture, which resulted in strangulated hernia and death after a surgical operation. It was held that the policy, though excluding hernia generally, must be construed to mean hernia arising within the system independently of external accident, and did insure against hernia the result of external violence. In North American Ins. Co. v. Burroughs, already cited, the insured, while pitching hay, was struck on the bowels by the handle of the fork, which slipped in his hands, and he died of the peritoneal inflammation which ensued. The jury found the blow was an accident and the cause of the death, and the court sustained the verdict. But the accident must be the immediate cause of disease, and the fact that disease afterward supervenes is not enough to bring the claim within the policy. The nice distinctions of causa proxima and causa remota complicate these cases.

In Harris v. Travelers' Ins. Co., superior court of Chicago (1868), the deceased was a fireman, who was accidentally buried under a falling wall, but soon rescued without apparent injury, and continued his work for three months, when he took poison. In suit to recover insurance on the ground that the accident rendered him insane, it was not only held to be suicide if he was sane, but, if he was insane on account of the accident, the death was held too remote to be covered by the policy, which includes only proximate results.

In 1870, the question of proximate cause came before the court of exchequer in England. Smith v. Accident Ins. Co., L. R., 5 Exch. 302. The assured, while washing his feet in an earthenware pan, and resting them on its edge, broke the pan and cut his foot under the ankle against the sharp side. He had always been a sober and healthy man, and had never suffered from erysipelas at any time. The wound was carefully dressed, but five days afterward erysipelas set in between the ankle and knee, about five or six inches above the wound, and he died in three days of erysipelas, which was consequent upon the wound, and for which there was no other known cause. The policy insured against all cuts, etc., "where such accidental injury is the direct and sole cause of death to the insured," but not against "erysipelas or any other disease, or secondary cause or causes arising within the system of the insured before, or at the time of, or following such accidental injury, whether causing such death directly or jointly with such accidental injury. A majority of the court held that the company were protected by the condition, and the case was distinguished from Fitton v. Accidental Death Ins. Co., because, in that case, no reference was made to secondary causes (which clause the company had inserted after Fitton's Case), and the hernia was there instantaneously caused by the accident. But Kelly, C. B., in his dissenting opinion, urges that the true effect of the condition is to exempt the company only where erysipelas arises within the system and is collateral to the accident, and wholly independent of it. After ably supporting this interpretation as clearly the true one, he urges that the language, if ambiguous, is to be construed contra proferentem.

Murder of the assured would seem to be an accident within the meaning of the policy (Ripley v. Railway Passengers' Ass. Co., ut supra), but suicide and selfinflicted injuries, even if not expressly excepted, would not be accidents, but frauds.

Under a policy insuring against bodily injury arising from any accident occasioned by an external cause, the plaintiff sued for allowance on account of a sprain to

his back by lifting a heavy weight in the course of his business. The defense urged that it was liable solely for external injury, but the court said "solely" was not in the policy, and left the jury to find whether the injury really and substantially arose from the accident. Martin v. Travelers' Ins. Co., 1 F. & F. 505 (1859).

The

The death of Dr. Bean, on Mont Blanc, in September, 1870, raised the novel question, whether freezing to death under his circumstances was an accident. story is so extraordinary that it is worth preservation. On September 5, 1870, Dr. Bean, with two other gentlemen, three guides and five porters, set cut from Chamouni to ascend Mont Blanc. They were seen on the summit at two o'clock P. M. of the next day, and then were hidden by a dense fog followed by a furious snow storm. The storm lasted for many days, and their bodies were not recovered until the 17th.

Dr. Bean was found in a sitting posture, with his left hand shading his eyes, and his right hand and arm extended, frozen stiff. Upon his body was found a diary, from which the following extracts were made: MONT BLANC.

Monday, Sept. 5.-Temperature 39o at 6 A. M. Tuesday, Sept. 6.- Temperature 340 at 2 A. M. Ascended to the top of Mont Blanc with ten other men, eight guides and porters, and Rev. McCorkindale and Mr. R. Arrived at summit at half-past two o'clock, when immediately I was left enveloped in an awful snow storm at some fifteen thousand feet. Dug a grotto and spent the night very uncomfortably - was very sick all night.

MONT BLANC, Sept. 7.

If any one shall see this, they will please send it, this book, to Mrs. H. M. Bean, Jonesboro', E. Tennessee, United States of America.

MY DARLING HESSY: We have now been on Mont Blanc in two days of awful snow storm; we have lost our way; are in a grotto hewn in the snow fifteen thousand feet above the sea. I do not think we will ever get down. If we do not, this may be found in some way and sent to you. * ** We have no provisions, and my feet are already frozen, and I am quite exhausted. I have just strength to write these few words.

J. B. BEAN.

Sept. 7, Noon. Still very cold and snowing very hard; much trouble with the men.

Dr. Bean was insured under an accident policy for three months, with permit for European travel, but without alteration of the stipulations which declared the policy not to cover death or injury, if caused by exposure to obvious or unnecessary danger or peril, and required him to use all due diligence for personal safety and protection. The injuries insured against were those from external, violent and accidental means, and did not include any of which there was no external and visible sign, and the policy only covered the results of injuries which ordinary prudence and precaution could not avoid. The foreign travel permit did "not in any case extend this insurance to cover the risks of any hunting or exploring expedition."

Suit was brought against the insurers, and the company contended that freezing under these circumstances was not an accident; that the insured voluntarily exposed himself to obvious and unnecessary danger and peril in incurring the hazard of an ascent of Mont Blanc, and was not using due diligence for his personal safety and protection, as the contract required; that the policy did not cover such an exploring expedition.

The case was compromised, and these interesting

questions were not passed upon at that time. That freezing is an accident, where it occurs without want of due care and needless exposure by the insured, would seem to follow from the analogy of drowning, or of suffocation by gases in a coal mine or carbonic acid in a chamber. The effect of exposure to the heat of the sun is hardly analogous. Sunstroke is a specific disease, and is as positive an affection of the brain as apoplexy or paralysis. Sinclair's Case, and the dicta therein, do not apply to death from atmospheric causes, where no specific disease is produced; and the argument that death in Dr. Bean's case was not an injury of which there was any external and visible sign, is answered by denying the fact. The frozen body was itself a visible sign of the injury. Frost in the corporeal tissues and ice in the arteries are as visible signs of injury as extravasated blood around the spot where a blow is struck. We have no doubt how this point will be decided whenever it receives adjudication.

But, on the other defenses, it is difficult to see how the plaintiff could prevail. The contract imposed on him an obligation to use all due diligence for personal safety and protection, and not to expose himself to obvious or unnecessary danger or peril. On the day previous to making the ascent, Dr. Bean sent for a notary and made and executed his last will. The ascent is notoriously dangerous. He must have known the risk, and the facts put in evidence by the plaintiff would doubtless have been deemed sufficient to support a nonsuit. Singularly enough, the importance of the assured observing these provisions has been discussed but little in the reports hitherto. The defense of negligence in these respects has been rarely raised, and the extent to which it will be held sufficient to avoid a policy is as yet undetermined.

In Martin's Case, already cited (32 Md. 310), the company contracted in unequivocal terms to insure the deceased against any accident save those embraced in certain exceptions, and every injury caused by accident, save those specially excepted, was within the policy. Martin was an engineer, and while backing his engine on a down grade, with a car in front as a precaution to check the speed, directed the fireman to run it, while he went over and upon the tender to get into this car and put on the brakes. While doing so, he slipped and fell between the car and the tender, and was killed. The company set up the negligence of the assured as the cause of the accident, and also that he willfully exposed himself to danger. But the court held that, although in actions of tort founded on the defendant's negligence, the contributory negligence of the plaintiff would prevent his recovery, yet it is no defense, where the liability sought to be enforced is created by a contract which does not specifically provide that the assured shall exercise diligence. The well-settled rule in fire insurance, that fire policies cover losses arising from carelessness or negligence of the plaintiff, if acting in good faith, applies here, because a chief object of the insurance is to protect the assured against that very thing; and in this case mere negligence of the assured was, by the terms of their own contract, no defense to the insurers in a suit on the policy.

As to the second defense, that Martin's death was caused by willful exposure to unnecessary peril, the court held that, whether or not this were the fact, the insurers had prayed the court below to leave that question to the jury, and the jury had found against them;

and the insurers, therefore, could not now obtain reversal on that ground. But the court went on to say that, if this question were an issue of law, they held that his doing what he did, in his regular duty, could not be called willful exposure, and that his falling was an unusual and unexpected result attending the performance of a usual and necessary act, and cite with approval the case of Schneider v. The Prov. Life Ins. Co., 24 Wis. 28 (1869).

In Schneider's Case the assured was killed while attempting to get on a train of cars in slow motion. The policy contained a stipulation against willful and wanton exposure to unnecessary danger, and in the court below the plaintiff was nonsuited on this ground. But the court above held that, though careless and negligent, it could not be held a willful and wanton exposure to unnecessary danger, and that to maintain the nonsuit under that clause, something more than mere negligence was necessary. They deny that contributory negligence of the deceased is sufficient to prevent the accident from coming within the policy, and say that there is nothing in the definition of the word which excludes the negligence of the injured party as one element of an accident.

On the other hand in Kentucky, in 1868, the supreme court laid down a different doctrine. In Morel v. Mississippi Valley Life Ins. Co., 4 Bush, 535, the plaintiff was insured against personal injury by any accident within the meaning of the policy. In traveling from Chattanooga to Nashville he inadvertently put his arm out of the car window, whereby his hand was injured. There was no clause in the policy requiring him to exercise diligent care. The company demurred, and the court sustained the demurrer, and held that the injury, being caused by his own carelessness, gave him no right to compensation. The court rest their decision solely on the ground that the injury was produced wholly by the insured's own carelessness, and apparently assume that the plaintiff is bound to show himself in due care before he can recover; although the contract is simply against any accident, and is silent on the question of care. The decision is against the weight of authority and is entitled to little consideration, for it stands unsupported either by reasoning or precedent.

The only case to our knowledge where, in any court of last resort, the clause, "the party insured is required to use all due diligence for personal safety and protection," has been construed, was decided in New Jersey in 1871. In Stone v. United States Casualty Co., 5 Vroom. (34 N. J.) 471, the assured was building a small barn, and had mounted to the second story to view the work. Stepping on a joist, which had a concealed defect and broke under him, he was killed by falling to the ground. At the time of the accident he had on two overcoats, and was said to be an awkward man. The court held that it was wholly a question for the jury to decide whether he was exercising due diligence, and that whether he exercised such care as a prudent man should, was properly left to them to find. They add that there was no rashness or exposure in placing himself where he did, and that the breaking of the beam was pure accident.

In Hoffman v. Travelers' Ins. Co., N. Y. supreme court, Clinton circuit, tried at Plattsburgh, in September, 1871, and reported in the Baltimore Underwriter, January 30, 1873, the assured was walking on a railroad track. A signal was given from an approaching engine at quite a distance from him. He then stepped off the

track on the side, and then, when the engine had almost reached him, within fifty to a hundred feet, he deliberately went on the track again; and before he got across it, he was struck and killed. A motion was made for nonsuit, on the ground that plaintiff had not established any cause of action. The court say, "That was a most reckless act. The rule is well settled that a party cannot walk on a railroad track without being guilty of negligence; and the courts hold that one about to cross the track must look both ways before attempting to cross, and that if he omits to do that he is guilty of negligence. So that it seems to me there is not a possibility of recovering under the proof in the case. The circumstances show that there was gross negligence on the part of the deceased- -more so than appears in any case I have had occasion to examine-and as gross negligence as if the man had hanged himself.

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The very first condition of the policy is that the party insured is required to use all due diligence for personal safety and protection. Now is there a human being that will say that the deceased did use due diligence for his protection? . . The deceased was where he had no business to be. . . As the case stands there must be a nonsuit."

In October, 1871, at Elmira, the supreme court of New York, Chemung circuit, was again called upon to rule upon the same clause in the unpublished case of Pratt v. Travelers' Ins. Co. By the terms of the policy, if the assured was guilty of a violation of any rule of any company or corporation, the policy was void; and no recovery could be had in case of willful exposure or want of due care. The deceased went on the cars, and was passing over a platform between two cars, as the plaintiff contended, or, as the company contended, was standing smoking on the rear platform of the last car, when he fell off and was killed. The court charged the jury that, if he fell from the cars while standing there when the train was in motion, and by carelessness on his part, and such carelessness as was in violation of the policy, then the plaintiff could not recover. . . If he was standing on either platform smoking, or standing there for any purpose whatever, and not passing directly from one car to another, he was in an improper place, in violation of the rules of the railroad company, and guilty of such negligence as would prevent recovery in this case altogether.

If he was not standing on the platform, but was passing from one car to another, the last car being a ladies' car, where no smoking was permitted, and was smoking previous to going upon the cars, and was passing from the ladies' car into the next car forward -the smoking car- for the purpose of smoking, then it was for the jury to say whether he was careless or in due care, when in the darkness he was passing from one car to another, situated as these cars were. It was incumbent on the defendants to prove the deceased guilty of negligence. They set up the defense and were required to prove it.

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It is believed that these are the only cases which have as yet involved these clauses in direct issue. The paucity of authority and the very modern character of all accident insurance must be our excuse for citing so much nisi prius law, but, where there is such a slender stock anywhere, it may be better than none, and convenient for those who are in charge of cases of this character, where the whole land is so nearly an unexplored region.

In England, it was held in 1857, in Shilling v. Accidental Death Insurance Company, 2 H. & N. 42, that

an accident insurance was within the statute of 14 Geo. III, ch. 48, § 2, and, like any other insurance on lives, must rest on an insurable interest in the real payee of the policy, and, although the policy was payable to the deceased and the suit brought by his administratrix, it was really for the benefit of another party, who paid the premiums. The statute is not law in America, and the general rules about insurable interest which are held here as to life policies apply undoubtedly to accident insurance.

A. Baum took a policy on his own life payable to N. Baum, and was killed by a gunshot wound. The company denied insurable interest in the payee. It was held that none need to be proved, as every man has an insurable interest in his own life, and he had appointed and the company accepted the payee. Prov. Life Ins. & Inv. Co. v. Baum, 29 Ind. 236.

Where there is a condition in the policy that questions in dispute shall be referred to arbitration, and the award be a final settlement, and made a rule of court, it is held in England to be a condition precedent, and to require an arbitration in the manner prescribed, and the rule in Scott v. Avery, 5 H. L. Cas. 811, applies. Braunstein v. Accidental Death Insurance Company, 1 Best & S. 782. Where Scott v. Avery is adopted in this country, it governs, undoubtedly, accident policies which contain the arbitration clause.

In Rhodes v. Railway Passengers' Ins. Co., 5 Lans. 71, it is decided that a parol contract for accident insurance is enforceable, and makes a complete contract, and an action may be had on the contract to insure, or the contract to issue a policy, and equity would enforce the contract. The rule adopted conforms to the now well-established principle in other insurance, that it may be effected without a written policy, which is not the contract but only evidence of it.

The policies generally provide that, in order to earn the stipulated compensation for death, the assured must die within ninety days from the happening of the accident. In Perry v. Provident Life Ins. & Inv. Co., 99 Mass. 162, the insured was station agent on a railroad, and was crushed between cars. He lived, after the day of the happening of the accident, ninety days and nine hours, and his life was thus prolonged by the extreme devotion and care of his wife. The company set up the defense that he outlived the stipulated period, but made no other defense. The plaintiff contended that de minimis non curat lex; that, at all events, it was only ninety days until it was ninety-one days, after the analogy of statute of limitations for taking poor debtors' oaths, but that really the policy running for a year made the effect of the limitation to be only a provision for the final termination of liability at the end of ninety days after the year expired. The court, however, construed the policy strictly, and held that the assured lived too long for compensation to be recovered for the death.

The plaintiff then sued the company on the other branch of the policy, and claimed indemnity for ninety days of total disability under the other clause. But the defendant corporation, which appears by the reports to have ever showed a cheerful disinclination to pay anybody any thing, contended that it was not liable to pay indemnity for weekly disability, because the policy stipulated in this second clause that it was to pay indemnity for an accident which should not be fatal; and, as the assured had died at last, it was not bound to pay indemnity any more than compensation. But the court held that the two clauses were to be

taken together, and, if the company was not liable on the first branch, it was on the second. We learn, however, dehors the record, that the Provident Life Insurance and Investment Company illustrated the difference between a judgment and a satisfied execution, and became insolvent about that time, and never did pay any part of the indemnity.

The policy of this same company provided that, in case of claim, the assured or his representatives should, when any injury occurred, "as soon thereafter as possible" give notice to the company or its agent of the facts. In Provident Life Ins. & Inv. Co. v. Martin, 32 Md. 310, the accident and death occurred on July 21. Within less than a week after, the widow reported the death to the company's agent, who had already heard of the accident. She then proceeded to get affidavits on August 18 and 28 and September 4, which were received by the agent and forwarded to Chicago, to the home office, about the latter date. The company contended that notice was not given soon enough, but the court say that this question was properly left to the jury to decide, who found for the plaintiff, and the court add: "If it were a matter of law, our judgment thereon would coincide with the conclusion the jury must have reached."

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The same company made a policy on the life of Americus Baum, payable to Napoleon Baum. The assured died by a gunshot wound. Notice of the death was to be given to the company as soon thereafter as possible." Napoleon never saw or had possession of the policy until eight or ten days after the death of the assured, when he immediately gave notice to the company. The company then delivered him blank affidavits, with statements that it would be sufficient if he returned them within three or four weeks, which he did. The court held that the notice was given in a reasonable time. Provident Life Ins. & Inv. Co. v. Baum, 29 Ind. 236.

We have dwelt on the history of this company as it appears in the reports, because its proceedings became notorious, and tended to bring general discredit upon the whole business of accident insurance and honest contemporaries. This company evidently rushed into business without the knowledge how, if it had the intent, to work fairly or give honest value. It is preeminent in litigation of the most pettifogging description, and should fairly carry the responsibility of its own acts.

In Ireland, the Accident Assurance Company made it a condition precedent to the right to recover, that a notice specifying particulars of the accident should be delivered at the chief office of the company in London within seven days of its occurrence. The wording was explicit. John Gamble was insured and was suddenly drowned, and it was impossible for the assured or his representatives to fulfill the terms of the notice within the time specified. But it was held that the provision "or the notice applied, as the terms of the policy negated any presumption which could relieve the conditic by implying that such sudden destruction should absive the performance of the condition. Gamble v. Accent Ass. Co., Irish Rep., 4 Com. Law, 204. This case s held to come within the rule that, when a party his contract creates a duty or charge upon himself, is bound to make it good, because it is his own volutary contract; although where the law imposes such duty, and the party is disabled from performing it wout any fault of his, the law may excuse him. Paradi v. Jane, Aleyn, 26.

A verdict was given for defendant. Plaintiff applied for reversal on the evidence. But the court refused the application because the only foundation for it was the plaintiff's own testimony. Potter v. Accident Ins. Co., 29 Ind. 210 (1867).

Cross v. Railway Accident Ass. Co., London Times, July 21, 1871, cited in Mr. Bliss' excellent book on life insurance, § 449, appears to be only a case of controverted fact whether death was caused from an accident or by disease.

The measure of damages in cases where indemnity is payable for injury is not the proportion which the injury bears to the amount payable for loss of life, nor does it include a claim for loss of time and profits, which is the same thing, but the assured is to recover indemnity for the expense and pain and loss immediately connected with the injury, without taking in the remote consequences, and without exceeding in any event the total sum payable in case of death. bald v. Railway Passengers' Ass. Co., 10 Ex. Ch. 45 (1854) This is the English rule, but it is unimportant in this country, because it is the universal custom to measure this indemnity by a fixed sum payable for the weeks of total continuous disability from all work.

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What constitutes total disability under these circumstances is very fully and admirably discussed in Hooper v. The Accidental Death Ins. Co., 5 H. & N. 546 (1860). The plaintiff was a solicitor, and while riding on horseback severely sprained his right ankle. On the same day he called in a surgeon, under whose care he remained for upwards of six weeks. For four weeks he was confined to his bedroom and the adjoining room on the same floor, and was unable to walk or stand, and for the next two weeks he could not leave the house. The plaintiff was able to write letters, read law, and the like, while lying on the couch, but was unable to attend business which could not be transacted in his house. The policy allowed five pounds per week for accidents which "shall cause any bodily injury to said insured of so serious a nature as wholly to disable him from following his usual business, occupation or pursuits." The plaintiff claimed for four weeks total disability. The defendants contended that he must be so disabled that the surgeon would forbid his doing any business at all, and said, if he had been a dancing-master, he might be said to be totally disabled. But so long as he could do any part of his work by himself or his clerk, he was not totally disabled, but only partially disabled. The plaintiff replied that partial disability as distinguished from total disability was, where a man was able to carry on his business though with more or less inconvenience to himself.

Pollock, C. B., said that there was no sound distinction between the case of a dancing-master and an attorney. For, if the dancing-master could not dance, he might play an instrument and teach others how to use their limbs in dancing, and an attorney, prostrate, deprived of sense and motion, might, to some extent, by partners and clerks, carry on his business. And he held that, if the plaintiff was wholly disabled from carrying on his business as he usually carried it on, the company would be liable.

The case was then carried to the exchequer chamber, and the judgment affirmed.

In Rhodes v. Railway Passenger Ins. Co., 5 Lans. 71, 77, under a similar clause, total disability to labor was required to be shown, but the measure of it was not discussed.

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