148 Mass. 153 | Mass. | 1889
1. No question was raised at the trial as to the authority of the secretary to represent the company, and none is open here. The only question before us as to the validity of the new or substituted policy is, whether it was beyond the power of the company itself to issue the new policy after the plaintiff’s accident had occurred ; and we can have no doubt upon this point. In the original policy, the plaintiff’s occupation was not correctly stated. There was no mention that he was a leather cutter, and yet his injury was received while pursuing that part of his occupation. How this mistake happened to be made is not stated. The new policy was issued for the purpose of correcting it; and, without inquiring whether there were sufficient facts to show that the company might have been compelled in equity to make the correction, it clearly had the power to do so. Mead v. Davison, 3 Ad. & El. 303. Spalding v. Conant, 146 Mass. 292.
2. The more difficult question is, whether the ruling was right that the plaintiff was insured only as a leather cutter, and that he was entitled to recover if wholly disabled from the prosecution of that occupation.' The policy upon its face describes the insured as “by occupation, profession, or employment a leather cutter and merchant.” It then provides, amongst other things, that, “if the insured shall sustain bodily injuries . . . which shall . . . immediately and wholly disable and prevent him
The classification of risks upon the back of the policy cannot have the effect to control the express stipulations on its face. The plaintiff was insured as a leather cutter and merchant. He was described as having this twofold occupation. To be entitled to recover a weekly indemnity, he must be wholly disabled from the prosecution of any and every kind of business pertaining to the occupation under which he was insured; that is, the twofold occupation of leather cutter and merchant. Such twofold occupations are not rare. Many kinds of business include buying and selling as well, as manufacturing, the whole being done by the same person. The fact that leather cutting is more hazardous than the mercantile portion of the insured’s business undoubtedly served to fix the classification and the rate of indemnity, but cannot control the provision in respect to the disability which shall entitle him to that indemnity. One of the appended provisions on the face of the policy is, that he shall not be entitled to indemnity “ beyond the money value of his time.” His time during his disability may have been used by him as a merchant to greater profit than if he had continued at his occupation of leather cutting.
The meaning and purpose of the specification that he is insured under the “ medium ” classification are not that his occupation is specified under that classification, for it is not. Nor is the specification necessary to show the amount he is to receive in case of an accident resulting in death or temporary disability, for that has already been distinctly stated just before. .But this specification derives its chief significance from the provision which follows, relating to his engaging in some occupation more
On the whole, we are of the opinion that, to entitle the plaintiff to recover, he must show a disability both as a leather cutter and as a merchant. Exceptions sustained.
