Doherty v. Am. Employers' Ins. Co. of Boston, Mass
| Decision Date | 05 January 1934 |
| Docket Number | No. 10.,10. |
| Citation | 169 A. 652 |
| Parties | DOHERTY v. AMERICAN EMPLOYERS' INS. CO. OF BOSTON, MASS. |
| Court | New Jersey Supreme Court |
Syllabus by the Court.
1. In a suit on a policy of accident insurance, by plaintiff claiming total disability from following his occupation, held not error to charge that proper construction of the policy "is not that the plaintiff must be so disabled as to prevent him from doing anything whatsoever pertaining to his occupation, but that if he be so disabled as to prevent him from doing any and every kind of business pertaining to his occupation he is entitled to recover in this case." Following Gross v. Commercial Casualty Ins. Co., 90 N. J. Law, 594, 101 A. 169.
2. Held, there was no harmful error in the admission and rejection of evidence in the respects complained of by the appellant.
Appeal from Supreme Court.
Action by John J. Doherty against the American Employers' Insurance Company of Boston, Mass. Judgment for plaintiff, and defendant appeals.
Affirmed.
Mark Townsend, Jr., of Jersey City, for appellant.
Ward & McGinnis, of Paterson, for respondent.
Respondent brought suit to recover on a policy issued to him by the appellant, assuring certain payments in case of death or disability resulting from bodily injuries effected solely by accidental means. Respondent had previously recovered verdicts in district court suits for sums due at the times such suits were instituted, all growing out of the same injuries upon which the present suit is based.
The accident to respondent occurred on April 30, 1929, and is alleged to have been sustained as respondent was cranking his automobile. The engine backfired and he received a blow which caused a prolapse of the rectum, as a result of which he was "both independently and exclusively of all other causes * * * continuously and wholly disabled and prevented from performing any and every kind of duty pertaining to his occupation * * *" for the period sued for, namely, from April 20, 1932, to August 31, 1932.
Respondent recovered a judgment from which this appeal is taken.
There were in the policy three provisions respecting payments for injuries, namely: (1) $100 per week for life "if such injuries independently and exclusively of all other causes shall within 30 days from the date of the accident continuously and wholly disable and prevent the insured from performing any and every kind of duty pertaining to his occupation."
(2) $75 per week for 52 weeks "if such injuries independently and exclusively of all other causes shall within 30 days from the date of accident, or within 30 days following continuous total disability, continuously disable and prevent the insured from performing a major portion of the daily duties pertaining to his occupation."
(3) $50 per week for a period not exceeding 200 consecutive weeks, "if such injuries independently and exclusively of all other causes shall within 30 days from the date of accident, or within 30 days following a period of continuous total or continuous intermediate disability, continuously disable and prevent the insured from performing one or more material daily duties pertaining to his occupation."
Respondent asserted that he suffered disability from accident which brought him within the first-quoted provision. Appellant asserted that the insured had not suffered disability which prevented him from performing any and every kind of duty pertaining to his occupation and asserted, further, that any disability was due to tuberculosis of the lungs.
The first ground urged for reversal challenges the accuracy of the charge of the court. The appellant quotes a lengthy excerpt from the charge, the pertinent part of which is as follows: "The reasonable construction to be put upon the language that was used in this policy that is now before us,...
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