McGrail v. Equitable Life Assurance Society of the United States

On August 4, 1919, defendant issued its policy of insurance to plaintiff whereby it agreed to pay a weekly indemnity for total disability arising from bodily injury effected during tbe term of tbe policy solely through external, violent and accidental means, directly and independently of other causes, which injury should wholly and continuously disable the insured from the date of the accident and prevent him from performing “ any and every duty pertaining to his occupation,” for a period of two hundred consecutive weeks and thereafter so long as the insured should be wholly and continuously disabled by such injuries from engaging in any occupation or employment for wages or profit, or a weekly indemnity for partial disability for a period not exceeding twenty-six weeks following total disability or from the date of the accident if such injuries should continuously disable the insured from performing ‘ ‘ one or more important daily duties pertaining to his occupation,” except where such accident or disability should be caused directly or indirectly, wholly or partly, by bodily or mental infirmity or disease.

While the policy was still in force, the insured accidentally fell on the ice near his home on February 9, 1940, landing on the back of his head and shoulders. He claims, in this action,

The plaintiff was a physician and surgeon, fifty-five years of age at the time of the accident, and had practiced his profession continuously in the city of Albany since 1915. The jury were authorized to find that the disabling thrombosis first manifested itself immediately upon the happening of the accident and thereafter continued with more or less severity, rendering it impossible for the plaintiff to perform any of the duties pertaining to his occupation in manner such as would bar him from recovery. He had no intimation of the existence of such a condition prior to the time of the accident and he was first informed that that condition disabled him after the taking of an electrocardiogram on April 16, 1940 by a heart specialist, and after a consultation in regard to his condition by a number of physicians. Previously, he had filed a written notice of disability with the defendant in which the nature of his illness was stated to be luxation of the right shoulder joint, traumatic neuritis, left ventricular preponderance and enlargement of the heart, the injury to the shoulder occurring on February 9th and the heart condition on February 26th. On April 6, 1940, the plaintiff filed two additional statements in which he asserted that he first became completely unable to perform the duties of his occupation on February 9, 1940, and that the date on which he was first able to resume any of his duties was February 23, 1940. In those notices, the plaintiff claimed forty-one days of total disability and sixteen days of partial

Plaintiff was in bed most of the time from the date of the accident, at least until February 23rd. Between those dates he saw some three former patients upon whom he had operated and another patient whom he was turning over to another physician. Between February 23rd and April 1st, he went to his office on from six to ten different occasions to prepare reports for attorneys and insurance men concerning cases which he had prior to the accident. He saw three of his former patients at his office during that period and a former patient at the latter’s home. He treated none of those patients, received no fees and the extent of his attention to them consisted of preparation for turning them over to other physicians, or at least the jury could so find. Ninety per cent of the plaintiff’s work consisted of surgery. It was undisputed at the trial that he performed no surgery after the accident, that he kept no regular office hours, that he took on no new patients.

Buies for the construction of contracts of insurance do not differ from those to be applied to the construction of other contracts. When the terms used are clear and unambiguous, they are generally to be taken and understood in their plain, ordinary and proper sense (Johnson v. Travelers Insurance Co. 269 N. Y. 401 , 408). But resort to a literal construction may not be had where the result would be to thwart the obvious and clearly expressed purpose which the parties intended to accomplish or where such a construction would lead to an obvious absurdity (Silverstein v. Metropolitan Life Ins. Co. 254 N. Y. 81 ) or place one party at the mercy of the other (Russell et al. v. Allerton, 108 N. Y. 288 , 292). Such meaning must be given to the terms used as would be ascribed to them by the ¡average man in applying for insurance and reading the language iof the policy at the time it was written (Lewis v. Ocean Acc. & G. Corp., 224 N. Y. 18 , 21; Silverstein v. Metropolitan Life Ins. Co., supra). Consistently followed in this State has been the rule that the policy must be construed reasonably and that it .must be given a practical construction, not thereby with the result that there is a revision of the policy or an increase of the risk and thus an extension of the resulting

Such a construction gives its intended effect to tbe total disability clause and to tbe partial disability clause of tbe policy. An insured may suffer partial disability which will “ prevent him from performing one or more important daily duties pertaining to bis occupation ” and yet be able to perform other duties. An insured suffers total disability when be is prevented from performing each and every duty though be may be able to perform, perhaps with peril to himself, occasional acts relating to bis vocation, but not consitnting a substantial part of any “daily (Fitzgerald v. Globe Indem. Co. of N. Y., 84 Cal. App. 689 ; Harrison v. Life & Acc. Ins. Co., 167 Tenn. 394 ). Tbe frequency and nature of tbe acts performed were matters properly for tbe consideration of tbe jury (Lobdill v. Laboring Men’s Mutual Aid Association, supra). Tbe foregoing is not contrary to tbe decision in Johnson v. Travelers Insurance Go. (supra) since in that case tbe evidence established that tbe insured suffered no loss of time at all, either total or partial, until some four or five weeks subsequent to tbe accident and there was no evidence in that case that plaintiff was prevented from substantially performing all of bis duties in tbe interim.

Tbe admissions by plaintiff in bis statements of claim, if they were sucb admissions, that be was only partially disabled following tbe accident do not conclude him, as matter of law, from asserting total continuous disability from tbe date of tbe accident when be found that to be tbe fact (Brendon v. Traders & Travelers’ Acc. Co., supra; Hallock v. Income Guaranty Co., supra).

Tbe trial court also correctly submitted to tbe jury, upon conflicting medical testimony, tbe question of whether or not tbe disability of tbe insured was caused directly or indirectly, wholly or partly, by bodily infirmity or by disease. There was ample evidence to support tbe jury’s finding that tbe thrombosis was produced solely as a result of tbe accident. That is not negatived by tbe fact, as tbe medical experts testified, that

We have examined the exceptions to the charge and the exceptions to the refusal of the court to charge as requested and we find no errors raising any substantial question for our consideration. After stating in detail and generally the rules for construction to which we have referred above, the court correctly submitted to the jury that, within those rules, the plain

The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.

LehmaN, Ch. J., Lewis, Desmond and Thacheb, JJ., concur.

Judgment accordingly.