Sawyer v. Masonic Protective Ass'n

• Decision Date: 04 May 1909
• Parties: SAWYER v. MASONIC PROTECTIVE ASS'N.
• Court: New Hampshire Supreme Court

73 A. 168

76 N.H. 276

SAWYER

v. MASONIC PROTECTIVE ASS'N.

Supreme Court of New Hampshire. Merrimack.

May 4, 1909.

Transferred from Superior Court, Merrimack County.

Action by George W. Sawyer against the Masonic Protective Association. Verdict for plaintiff. Transferred from the superior court on defendant's exception to the denial of a motion for nonsuit. Exception sustained.

Assumpsit, for an indemnity under a benefit certificate. The certificate contains the following provisions: "A disability, to constitute a claim for sickness, * * * shall require absolute, necessary, continuous confinement to the house for not less than fourteen days. * * * And no disability * * * shall constitute a claim for a longer period than the insured shall be totally disabled and absolutely, necessarily, continuously, confined to bis house."

The plaintiff's evidence tended to show these facts: He was a grocer, and was seriously sick and totally incapacitated for labor from May 2d to September 10th. May 1st his physician began to treat him at his house for paralysis of the throat and other troubles connected therewith. He was confined to his house in Franklin from that time until July 8th, except that he went once or twice a week to the office of his physician for X-ray treatment, and on some of these occasions went beyond the office to a barber shop a quarter of a mile distant from his house. He occasionally stepped into his store, but did no work there. July 8th he went to York Beach by advice of his physician. On the way be consulted a specialist in Boston, and while at the beach was driven to a barber shop twice a week.

Leach, Stevens & Couch, for plaintiff.

Henry F. Hollis, for defendant.

PEASLEE, J. The plaintiff relies upon Scales v. Association, 70 N. H. 490, 48 Atl. 1084. He claims that the case is authority for the proposition that total disability to labor entitles him to recover, although he was not in any sense confined to his house. If such a conclusion is to be drawn from what is said in the first paragraph of the opinion in that case, it cannot now be followed. The disability is to be such as to ordinarily confine one to the house as a matter of necessity. As was said in the Scales Case, the confinement is not a condition precedent. If the insured were taken out because the house was on fire, or if he were carried to a hospital in an ambulance, it would not defeat a recovery; but that case does not decide that one can recover under this policy when he is totally incapacitated to labor,...