On appeal from a judgment of the District Court of the city of Clifton.
For the appellant, McCarter & English (Verling C. Enteman, of counsel).
For the respondent, Skolkin & Cohen (Jack Rinzler, of counsel).
Before Justices Trenchard, Bodine and Heher.
The opinion of the court was delivered by
HEHER, J. The District Court judge, sitting without a jury, awarded plaintiff disability benefits under a clause of a policy of life insurance, issued to him as the assured by the defendant company, obligating the insurer to pay such benefits if, after the payment of one full year's premium on the policy, the insured "shall become wholly and permanently disabled by bodily injury or disease sustained or contracted after the date" thereof, "so that thereby he will be wholly continuously and permanently prevented from the pursuit of any form of mental or manual labor for compensation, gain or profit whatsoever, and has been so disabled for not less than sixty days * * *." Liability was expressly conditioned upon "the receipt of due proof of such disability." Defendant appeals.
The first insistence is that the furnishing of "due proof" of such disability is a condition precedent to the right of recovery, and there is no evidence of compliance with that requirement.
We think the proofs support a finding of waiver of the provision by the insurer. On this point, the case seems to be ruled by Teitelbaum v. Massachusetts Accident Co., 13 N.J. Mis. R. 811; affirmed, 116 N.J.L. 417.
But the inquiry need not be pursued. We perceive no basis in the evidence for the finding that the insured is "wholly and permanently disabled," within the intendment of the policy provision; and it was therefore error to deny the insurer's motions for a nonsuit and a directed verdict.
The insured is a house painter by trade. In his application for the policy in suit, he stated his "present occupation" to be that of a "contractor painter;" and he admitted that he has engaged in that pursuit to some extent since he sustained his injuries, which consisted of a fracture of the pelvic bone and a comminuted fracture of the tibia of the right leg. It is conceded that he has had "a marvelous recovery." His own physician described it as "a lucky one." The pelvic break has completely healed, and there is little or no consequent disability. As to the fractured tibia, "the alignment was satisfactory." And "the recovery in general * * * was satisfactory," although at the time of this physician's "last complete physical examination," -- in the latter part of January, 1934, less than a year before the trial -- plaintiff suffered from swelling of the ankle. But he was then "no longer totally disabled." His physician expressed the opinion that at that time he was laboring under a disability of only ten or twelve per cent. of total; that he was able to pursue his occupation to some extent; and that he "could resume his usual occupation in four or five months." This evidence was adduced by the insured.
The accident occurred on September 11th, 1933. Plaintiff testified (on February 7th, 1935) that, for a period of ten months thereafter, he was required to use, first, a crutch, and then a cane, and during that interval was unable to do any work at his calling, except "one job." But this, he later explained, was in October, 1934, when he "was the contractor" for the painting of a house. The work was done by hired painters under his supervision; he also painted the doors. He said that, during this ten months' period, he could do "nothing" himself; that he was "tired out," and suffered from a swelling of the foot; and that "even to-day it is swollen."
Pertinent to the basic inquiry is the testimony of plaintiff that, prior to the accident, he was a "boss painter;" he worked "both as boss painter and individually." He was also in the general "building and contracting business," and ...