Page:Harvard Law Review Volume 4.djvu/196

180 he was as effectually disabled from performing his business as if he could do nothing required to be done; and while remaining in that condition he would suffer loss of time in the business of his occupation." Hooper v. Accidental Death Insurance Company was relied on as an authority for the position taken. Saveland v. Fidelity and Casualty Company, although decided over a year previously, was not cited by court or counsel.

Such are the decisions of the courts on this subject. The last two are the only ones which directly bear upon the interpretation of the policy in use at the present day, but the influence of the others can be felt in these.

The weight of authority, although slight, seems to be with the Wisconsin case. The vigorous language of the court in Lyon v. Railway Passenger Assurance Company leaves little room for doubt that it would have agreed with the Wisconsin court. On the other hand, it is hard to see how Hooper v. Accidental Death Insurance Company supports the decision of the court in Young v. Travelers Insurance Company. In the English case, and in the case in the Massachusetts Superior Court which followed it, the language of the policy was very loose. In the former, Wilde, B., said, "Surely 'wholly disabled' is equivalent to quite disabled, and a man is so unless he can do what he is called upon to do in the ordinary course of his business. It is not the same thing as ' "unable to do any part;" of his business;'" and Pollock, C. B., said, "It may be said that here there is a total loss of part as distinguished from a partial loss of the whole." In the policy before us, however, can it be said that the total loss of part is enough for a recovery when the requirement is that there should be a total loss of "any and every kind of business pertaining to the occupation"?

If the weight of authority seems to be with the Wisconsin court, still more does the weight of rhetoric, if I may use the expression, point to the conclusion reached by that court. "Business" means "that by which one earns a livelihood." "Occupation," though sometimes used synonymously, is a broader term. A man is a lawyer by occupation. His business, i.e., "that which busies him," may be the arguing of cases, or it may be the preparation