valuable illustrations of the extent to which the courts have gone in construing the words "external" and "violent." Another instance of recovery, where the immediate cause of the death or injury is a disease, but which in turn is traceable to an accident, is a case of pneumonia and death, resulting from a weakness caused by a fall (49); and also death caused by a rupture, in turn traceable to a fall.

§ 131. Disease followed by accident. On the other hand, the fact that the insured already had a disease which weakened him so that he suffered from an accident under circumstances where the normal man would not have been affected, will not prevent his recovery (50). This is perfectly sound on principle, and follows exactly the analogy of the explosion cases in fire insurance (§ 117, above). Many insurance policies now have clauses providing that there shall be no recovery for a death caused in whole or in part by disease. This limitation is strictly construed by the courts, and the fact that the disease was present will not bar the recovery if it can be said that the effective cause of the death was after all the accident.

§ 132. Kinds of injuries. Three kinds of injuries may be covered by an accident policy, namely, death, total disability, and loss of members. Death is not covered by the phrase "total disability." To include the former it must be specifically mentioned (51).

(49) Isitt v. Assurance Co., 22 Q. B. Div. 504.
(50) Tennant v. Insurance Co., 31 Fed. 322.
(51) Rosenberry v. Casualty Co., 14 Ind. App. 625.

§ 133. Total disability. By total disability, either temporary or permanent, is meant a state of affairs where the insured is substantially prevented from carrying on his business, although he may be in such a condition that he can still attend to some small details thereof. Thus, it has been held that a physician, who is so badly injured that he is confined to his bed, is totally disabled within the meaning of the policy, although he has while in bed prescribed for some few patients (52). So a laborer who could work for a few moments at a time, but not sustainedly or so as to command any wages, was held to be totally disabled (53). When the insured, however, is engaged in two businesses, and insured as being so engaged, he must prove a total disability in both; as in one case where he was insured as a leather cutter and merchant, and had his hand hurt so that he could not cut leather but could still sell, he was held not to be totally disabled within the meaning of the policy (54). On the converse of the same principle, the mere fact that the insured cannot attend to all of the details of his business does not amount to total disability. Thus, where the insured was a lawyer who had sprained his wrist so that he was prevented from writing freely, but otherwise could attend to his work, he was held not to be totally disabled (55).

§ 134. Loss of limbs. With reference to the loss of particular parts of the body, it is not necessary that they should be actually severed from the body. It is sufficient

(52) Wolcott v. Insurance Co., 55 Hun (N. Y.) 98. (53) Grand Lodge v. Orrell, 206 Ill. 208.

(54) Ford v. Insurance Co., 148 Mass. 153.

(55) Assurance Co. v. Millard, 43 Ill. App. 148.

if they are rendered useless. Thus, where the insured was injured by a bullet wound in the back, so that both his legs were paralyzed, he was allowed to recover as for a loss of both legs (56). Some policies require "loss by severance" in order to entitle the insured to recover. This has been construed as applying only to the method of loss, so that if part of the hand is cut off in such a way as to render the rest of the hand useless, this was held to be a total loss by severance of the hand (57).

(56) Sheanon v. Insurance Co., 77 Wis. 618.
(57) Sneck v. Insurance Co., 34 N. Y. Supp. 545.

CHAPTER VI.

RECOVERY AND SUBROGATION.

§ 135. Introductory. As has already been said, the general principle of insurance may be said to be indemnity only, not that the insured should profit to any degree out of the loss or transaction against which he has been insured. This principle of indemnity only is particularly applicable to marine and fire insurance. For reasons which will be pointed out later on, it is not applicable to life and accident insurance.

SECTION 1. MARINE INSURANCE.

§ 136. Total loss. Where a total loss takes place in marine insurance, no question can arise as to the amount of recovery. The insured necessarily recovers up to the full face of the policy, providing of course that that amount does not exceed the amount of his actual loss. In a valued (1) policy the amount of the recovery is definitely settled by the face of the policy. All that the insured need prove is that the loss took place. In the open (1) policy the insured must prove the amount of his loss. If the article insured is the vessel, the amount of the loss is the value of the vessel at the beginning of the risk. If it is the cargo that is insured, the amount of loss is measured

(1) §3, above.

by the actual cost of the cargo when loaded; or, if that cannot be ascertained, by the actual cost of the cargo ashore plus what it would cost to load it. If it is the freight that is insured, the amount of recovery equals the gross charges for the freight with no deduction for the cost of transportation. The same principles for estimating loss apply as well in the case of a constructive loss (2) assuming that the facts are sufficient to justify an abandonment on the part of the insured.

§ 137. Partial loss. In the case of a partial loss, marine insurance has one doctrine that is peculiar to it, and that is the doctrine of co-insurance between the insurer and the insured, the general principle being that the insurer contributes to the partial loss only in the ratio that the amount of insurance bears to the total value. Thus, suppose a vessel is worth $50,000, is insured for $30,000, and there is a $5,000 loss. This is of course a loss of onetenth of the actual value of the vessel, and the insurer pays the same proportion of that loss that $30,000 bears to $50,000, that is to say, three-fifths of $5,000. In other words, with marine insurance, if the insured wants to get full indemnity for partial loss, it is necessary to have the property insured for its full value. This principle applies to insurance of vessel, or cargo, or freight.

SECTION 2. FIRE INSURANCE.

§ 138. Open policy: Total loss. Where the owner of property has it totally destroyed by fire, the general principle is that if the policy is open, the value of the property

(2) § 105, above.