296 Mass. 18 | Mass. | 1936
This is an action to recover disability benefits under a policy of accident insurance which insured the plaintiff, “by occupation a Foreman Piano Mover against loss resulting from bodily injury caused during the term of this Policy directly and exclusively of all other causes by accidental means, as specified in the following Schedule, subject to the provisions and limitations hereinafter contained.” The weekly indemnity specified in the policy amounts to $18. The questions in this case arise under Part B of the Schedule of Indemnities of the policy, which appears in a footnote.
There was evidence that on January 3, 1931, while the plaintiff was in a moving truck, steadying an old-fashioned square piano that stood on its edge, a skidding of the truck caused the piano to fall upon him, producing serious injuries. Payment was made by the defendant insurer at the rate of $18 a week for total disability, until June 28, 1931, when the defendant contended that the plaintiff was able to resume his regular occupation. The plaintiff claims the weekly indemnity of $18 (1) for total disability to perform “any and every kind of duty pertaining to his occupation” of “foreman piano mover” from June 28, 1931, to the expiration of the year on January 3, 1932, and (2) for total disability to engage in “any occupation or employment for wage or profit” from the last date until the date of the writ on April 2, 1932. The jury returned a verdict for the plaintiff for $889.80, substantially the entire amount claimed with interest from the date of the writ. No question of partial disability is raised, for it is apparent that the verdict was based on total disability for the entire period from June 28,1931, to April 2,1932. The defendant alleged exceptions.
One physician called by the defendant testified that on June 6, 1931, “the plaintiff was in fit condition to resume work, excluding heavy work; that he thought he could have done moderate light lifting.” Another testified that “as far as the back was concerned, he [¡the plaintiff] could do any kind of work that he had done before; that he understood he was a foreman piano mover and it was his opinion that he could do any work that would be required in that sort of work.”
At the end of the evidence, the defendant moved for a directed verdict in its favor. It excepted to the denial of
The sixth request was as follows: “On the evidence the jury would not be justified on any evidence in the case in finding that the plaintiff at any time from and after June 28, 1931, was wholly and continuously disabled by the bodily injury of January 3, 1931, from engaging in any occupation or employment for wage or profit.” The first request covers much the same ground. In Rezendes v. Prudential Ins. Co. 285 Mass. 505, 511, it was said, “The disability of an insured who still retains the power to do some work may be within the policy definition if he is ‘wholly and continuously unable’ to do any work of such character that he can receive therefor any financial compensation.” On page 513, it was said, “We think that it is a fair and reasonable construction of. the language of the policy, consistent with the purposes of the insurance contract ... to hold that under his policy the insured is entitled to disability benefits if his condition in fact is such that he is unable to work without running the risk of increasing his disability or of shortening his life.” In Adamaitis v. Metropolitan Life Ins. Co. 295 Mass. 215, 219, it was said, “Complete physical or mental incapacity of the insured ... is not essential to his total disability within the meaning of the contract of insurance. It is sufficient that his. disability is such that it prevents him from performing remunerative work of a substantial and not merely trifling character. . . . Total disability is relative. ’ It does not depend wholly on physical condition.” In Duhaime v. Prudential Ins. Co. 86 N. H. 307, 308-309, it was said, “It is self-evident that an injury which might
We think that the verdict for the plaintiff was supported by the evidence, even to the extent that the verdict rested solely upon total disability to engage in “any occupation or employment for wage or profit.” He is a man of forty, who has been engaged in hard manual labor since he was fourteen. The jury saw him. Nothing in the record suggests that he had any fitness for any other kind of work. The jury might find that there was no “occupation or employment” worthy of the name in which as a practical matter the plaintiff in his physical condition could “engage” for “wage or profit.” Sullivan’s Case, 218 Mass. 141. Duprey’s Case, 219 Mass. 189, 193. Sheppard’s Case, 287 Mass. 459, 464. Fennell’s Case, 289 Mass. 89, 94. Adomaitis v. Metropolitan Life Ins. Co. 295 Mass. 215, 220-221.
Exceptions to the alleged refusal to give other requested instructions have been argued, but we think that the requested instructions were given in substance. Although the judge did not repeat every limitation upon recovery
Exceptions overruled.
Part B. Total and Partial Disability — Single Indemnity.
Total Disability I. Or, if such injury independently and exclusively of all other causes shall wholly and continuously disable the Insured from date of accident from performing any and every kind of duty pertaining to his occupation, the Company will pay weekly indemnity at the rate hereinbefore specified for the period of such continuous total disability, but not exceeding fifty-two (52) consecutive weeks. After the payment of weekly indemnity for fifty-two (52) weeks as aforesaid the Company will continue weekly pay-
Partial Disability II. Or, if such injury from the time of the accident or from and immediately following the period of total disability as hereinabove defined, directly and exclusively of all other causes, continuously and wholly prevents the Insured from performing one or more important daily duties of his occupation, the Company will pay per week during the period of such partial disability but not for more than twenty-six consecutive weeks, two-fifths of the amount payable per week for total disability.