Brendon v. Traders & Travelers' Accident Co.

82 N.Y.S. 860 | N.Y. App. Div. | 1903

Laughlin, J.;

The action is upon a membership certificate or insurance policy issued by the defendant to the plaintiff, whose occupation was stated to be that of a physician, insuring him against “. bodily injuries sustained during Ms membership through involuntary, external, violent and accidental means, independently of all other causes.” The certificate or policy provided that “ If such accident independently of all other causes shall immediately, continuously and wholly disable the assured member from performing any and every kind of business pertaining to his occupation above stated, the company will pay him the sum of Twenty-five dollars per week during the continuance of such disability, but for a period not exceeding 52 consecutive weeks.” The policy further provided that “If such injuries are sustained while riding as a passenger in or on a passenger conveyance using steam, cable or electricity as a motive power, the amount to be paid shall be the maximum amount as laid down in the company’s schedule of classification of risks (printed on the back of this policy).” The maximum amount to which this provision related was thirty dollars per week.

On the afternoon of the 18th of February, 1902, the plaintiff was a passenger on a Lexington avenue car. The car was crowded and he was obliged to stand. The car started suddenly to go around the curve from Twenty-third street to Broadway. The plaintiff was holding on to a strap and was swung violently around, his weight resting on his left foot which was held in place by the feet of other people, and his knee was twisted and strained. He felt quite a little pain at the time, and when the car reached Eighteenth street he transferred to another car and went to his home at 213 West Twelfth street. The knee continued to be quite painful and commenced to swell that evening. He put on cold applications and remained home. In the morning the pain and swelling continued, but he made a necessary visit to a patient nearby and then returned home and there remained. The next day the knee was still more swollen and painful and he could scarcely move it at all. On the twenty-first its condition was such that he was obliged to go to bed and have it treated. A physician was called and the knee was' put in splints and kept immovable and bandaged. He remained in bed for nearly three weeks.

The principal question presented is whether the accident “ immediately, continuously and wholly ” disabled the plaintiff from performing any and every kind of business pertaining to his occupation. We are of opinion that it did within the fair intent and meaning of the policy. The only act that he performed as a physician was to .pay ..a necessary visit to a single patient in the immediate neighborhood of his residence." The undisputed evidence relating to. the -subsequent history of the injury shows that he was really unable to •perform this visit in justice to himself. The fact that his sense of "his professional obligation to his patient led him to make this visit when he was in a crippled and substantially disabled condition is ■not sufficient-in and of itself to show that he was not continuously and wholly disabled. The injury had been sustained. It affected him immediately. The disability attached immediately and was progressive and continuous. If the insurance did not cover such a condition it was of little value, and to allow an insurance company to receive large premiums and escape liability in these circumstances •would be to sanction the perpetration of a fraud upon" its policy"holders. The rule of construction, applicable to these insurance policies, which are carefully prepared by the insurance companies' in their own interests, is that .the words employed shall be construed most strictly against them. In Preferred Masonic Mutual Accident Assn. v. Jones, (60 Ill. App. 106) it was held that a salesman who was able to perform his duties for five days after an accident Was not “immediately, wholly and continuously ” disabled, and the court held.that the Word “ immediately ” in this connection meant “presently, , without any substantial • interval.” In Merrill v. Travelers' Ins. Co. (91 Wis. 329) the court in construing a similar clause held that the word “immediately” refers to proximity of time with the injury and is used in the sense of “ presently, without lapse of- time- or material delay,” and that the disability “must, have ensued so closely upon the accident that he was wholly' disabled from proceeding and transacting the business of his occupation regularly and in its due and proper course.” In Ritter v. Accident Association (185 Penn. St. 90), where after the accident and on-the same day the plaintiff, a real estate and insurance agent,, picked cherries for an hour and a half from a step ladder, and. the next two days went to his office and received rent from a. few persons for his clients, and the third day was paralyzed. in his -lower limbs and totally disabled, the court approved á charge that “ immediately ” referred to time rather than cause but did not mean “ instantaneously,” that it meant within a reasonable time, which was a question of law for the court,, and'that, in these circumstances.the disability followed within a reasonable time. In Wolcott v. United Life & Accident Ins. Assn. (55 Hun, 98) it was held that the fact that a physician while in bed examined a patient, reached for medicines and advised as to their use did not show that he was not totally disabled. In Lobdill v. Laboring Men's Mutual Aid Assn. (69 Minn. 14) it was held that occasional and trivial acts by a merchant in connection with his business did not show want of total disability. In Hohn v. Inter-State Casualty Co. (115 Mich. 79), where a barber after meeting with an accident went to his shop and did some work for several days, suffered pain, became weak and was obliged to desist and on the eighth day took to his bed where he remained for several weeks, it was held that he was immediately, continuously and totally disabled within the meaning of a similar provision in an insurance policy. Within these authorities it is clear that a single act in the' line of his profession such as was performed by this plaintiff does not bar him from claiming that he was immediately, continuously and wholly disabled.

In the proof of claim filed by the plaintiff he stated the time and circumstances of the injury, but he only claimed total disability from the third day when he was obliged to take to his bed. It is claimed that this prevents a recovery on the theory that it shows that total disability was not immediate. This contention cannot be sustained. He claimed for a total disability from the twenty-first of February to the fourteenth of March, a period of three weeks, and the recovery was for that period. His failure to make the claim for the first three days may have been a waiver of the insuiv anee for that time and it was some evidence to be considered by the jury on the question of whether his disability was immediate; but he was not estopped thereby from claiming immediate,, continuous and total disability in order to recover the insurance for the period for which he had presented a claim, which was more favorable to the' insurance company than the facts warranted.

The plaintiff’s recovery was less than one hundred dollars, and under section 332 of the Municipal Court Act (Laws of 1902, chap. 580) he was only entitled to recover an allowance of ten dollars as costs upon the recovery. He was, however, allowed twelve dollars.

It follows, therefore, that the determination of the Appellate Term should he reversed and the judgment of the Municipal Court .modified by . reducing the statutory allowance of .costs upon the recovery to ten dollars, and as modified .affirmed, with costs.

O’Brien, Ingraham, McLaughlin and Hatch, JJ., concurred.

■ Determination of Appellate Term reversed, and judgment of Municipal Court modified by reducing the statutory allowance of costs to ten dollars,, and -as modified affirmed, with costs.