(dissenting).
Under the laws of Indiana and the facts appearing in this case, the cause of action sued upon consisted of two elements, i. e., a legal injury and resulting damages, and it did not accrue until the two elements came into existence and the damage was such as was susceptible of ascertainment. Gahimer v. Virginia-Carolina Chemical *409Corporation, 7 Cir., 241 F.2d 836, 840. There is no question that the suit was filed soon after the damage was susceptible of ascertainment.
In the various escape-from-liability ■clauses relied upon by defendant in the •case at bar there is no language which abrogates the conclusions which we reached in Gahimer and which are applicable to the case at bar. Unless we apply legal tests fitted to the factual situation here existing we will arrive at a harsh and unrealistic result. Hence I would reverse and remand this cause to the district court for further appropriate proceedings.