Peterson v. Hartford Acc. & Indem. Co.

• Decision Date: 03 September 1954
• Docket Number: No. A--429,A--429
• Citation: 107 A.2d 668,32 N.J.Super. 23
• Parties: Albert D. PETERSON, Plaintiff-Respondent, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 23

32 N.J.Super. 23

107 A.2d 668

Albert D. PETERSON, Plaintiff-Respondent, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, Defendant-Appellant.

No. A--429.

Superior Court of New Jersey Appellate Division.

Argued Aug. 16, 1954.

Decided Sept. 3, 1954.

A. Leo Bohl, Paterson, for appellant.

Nathan Rabinowitz, Paterson, for repondent.

Before Judges SPEAKMAN, HEGARTY and CONLON.

The opinion of the court was delivered by

SPEAKMAN, J.S.C. (temporarily assigned).

On February 23, 1950 defendant issued to the plaintiff its policy of insurance insuring him against loss resulting directly and independently of all other causes from accidental bodily injuries sustained during the term thereof, which contained the following provisions pertinent to this controversy:

'Section I Total Disability

If such injuries shall, within twenty days from the date of accident, wholly and continuously disable and prevent the Insured from performing every 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 for not exceeding fifty-two consecutive weeks. After the payment of weekly indemnity for fifty-two weeks as aforesaid, the Company will continue the payment of weekly indemnity at the same rate thereafter so long as the Insured shall be wholly and continuously disabled by such injuries from engaging in any occupation or employment for wage or profit. * * *

Section 2 Partial Disability

Or, if such injuries shall, within twenty days from the date of accident or immediately following a period of total disability covered under Section 1, continuously disable and prevent the Insured from performing an important daily duty pertaining to his occupation, the Company will pay for the period of such continuous partial disability, at the rate of two-fifths of the weekly indemnity specified for total disability but for not exceeding twenty-six consecutive weeks. * * *'

The weekly indemnity rate specified in the policy for total disability was $25 and for partial disability $10.

On June 26, 1950, while the policy was in full force and effect, plaintiff, a carpenter by trade, who was at the time working on a telephone building in Radburn, New Jersey, slipped and fell from an iron girder to the floor, 20 feet below. At the Barnet Memorial Hospital, where he was immediately taken, it was discovered that he had compound fractures of both wrists, injuries to his hands, arms and right elbow, numerous contusions about the left side of his face, left thigh and the left side of his abdomen and that he was in a state of shock. He was bleeding internally, and on the operating table six tears in the messenteric section of the small intestine were found.

Conceding plaintiff's right to indemnity under the first sentence of section 1 as being wholly and continuously disabled and prevented from performing every duty pertaining to his occupation defendant paid plaintiff $25 a week for 52 weeks. Under the second sentence of section 1 which required plaintiff to be wholly and continuously disabled from engaging in any occupation or employment for wage or profit, defendant continued to make payments in a like amount until March 3, 1952. On that date total disability payments were terminated and thereafter partial disability payments in the amount of $10 weekly were made for 26 weeks as provided in section 2. During the period of partial disability payments, plaintiff did not object to receiving the lesser sum. After they were terminated, however, the present action was instituted wherein plaintiff sought to recover the sum of $435, the alleged difference between the temporary disability payments received and total disability benefits alleged to be due for the period March 3 to September 22, 1952. In his complaint plaintiff alleged that during that period he continued to be wholly disabled from engaging in any occupation or employment for wage or profit.

At the subsequent trial before the district court judge, sitting without a jury, in addition to the facts above set forth the plaintiff presented evidence that X-rays of the right wrist disclosed that the fragments had not united properly and that there was some deformity of the wrist, that there were hypertrophic productive changes of the right elbow, that he still complains of his abdominal condition, that both hands show osteo-arthritic changes of a traumatic origin and that he has Sudek's atrophy of both wrists.

Additionally Dr. Policastro, a neuropsychiatrist who examined plaintiff in January, 1951 and again on June 22, 1953, testified that as a result of the injuries sustained, plaintiff had developed a traumatic neurosis which was manifest on his first examination and at the time of his second examination was so marked as to be characterized as manic-depressive psychosis rendering him unable to fulfill any work of any kind. Plaintiff's uncontroverted testimony was that he had not been employed since the accident.

For the defendant evidence was introduced that during the time that plaintiff claimed he was totally unable to perform any work, he had signed applications for automobile driver's licenses, although during the same period he had endorsed the checks he received from defendant with an 'X', that at one time or another he had been seen driving a car, chopping wood, lighting a pipe, as well as drying dishes and shoveling snow. Defendant also presented the medical testimony of Dr. Flicker, a neuro-psychiatrist who examined the plaintiff on November 29, 1951, who expressed the opinion that at the time of his examination plaintiff was able to do some minor things in industry, 'possibly even going in the capacity of a watchman or a door checker,' but probably would never be able to return to work as a carpenter.

In passing, it is interesting to note that notwithstanding Dr. Flicker's opinion the defendant continued to make total disability payments under the second sentence of section 1 until March 3 of the following year.

On this conflicting evidence the trial judge found as a fact that from March 3, 1952 to September 22, 1952--the period during which defendant had been paying partial disability--the plaintiff was wholly and continuously disabled from engaging in any occupation or employment for wage or profit and that in the circumstances disclosed the payment to and the acceptance by the plaintiff of checks for partial disability did not constitute an accord and satisfaction. From the subsequent judgment in favor of the plaintiff for the amount demanded in the complaint the defendant took the present appeal.

The defendant presents three grounds for reversal of the challenged judgment: (1) that during the 26-week period commencing March 3, 1952, the plaintiff was not totally disabled within the meaning of the policy; (2) that in any event the payment of partial disability to and acceptance thereof by the plaintiff without objection during this period constituted an accord and satisfaction, and (3) that the trial court's statement in his 'conclusions of law' that the plaintiff had sustained the burden of establishing that he was disabled during this period from performing every duty pertaining To his occupation (emphasis supplied) was (a) an improper test under the policy provisions and (b) inconsistent with the trial court's findings of fact.

The resolution of the first contention requires the ascertainment of the meaning of section 1 of the policy and particularly the second sentence thereof, which reads:

'After the payment of weekly indemnity for fifty-two weeks as aforesaid, the Company will continue the payment of weekly indemnity at the same rate thereafter so long as the Insured shall be wholly and continuously disabled by such injuries from engaging in any occupation or employment for wage or profit.'

Identical or substantially identical language has long been contained in insurance contracts and on a number of prior occasions has been the subject of judicial scrutiny in this State.

Our courts, both trial and appellate, have consistently taken the view that this provision must be liberally and not literally, reasonably and not unreasonably, naturally and not unnaturally construed so as to obtain the objects for which the contract is designed and the purpose to which it is applied. Thus it has been uniformly held that this language should not be construed as requiring a state of absolute inability to carry on any vocation whatsoever, Doherty v. American Employers' Insurance Co., 112 N.J.L. 52, 169 A. 652 (E. & A. 1934); Nickolopulos v. Equitable Life Assurance Society, 113 N.J.L. 450, 174 A. 759 (E. & A. 1934); Woodrow v. Travelers Insurance Co., 121 N.J.L. 170, 1 A.2d 447 (E. & A. 1938); Rosenthal v. Colonial Life Insurance Co., 118 N.J.Eq. 182, 178 A. 202 (Ch.1935); Barbato v. Prudential Insurance Co., 165 A. 872, 11 N.J.Misc. 355 (Sup.Ct.1933), but should be construed as meaning an inability to perform any work for compensation of financial value in his regular business or any other pursuit for which he was qualified and which he would be reasonably contemplated to pursue. Nickolopulos v. Equitable Life Assurance Society, supra; Kordulak v. Prudential Insurance Co., 190 A. 325, 15 N.J.Misc. 242 (Dist.Ct.1937), and cases cited therein.

Vice-Chancellor Sooy in ...