On appeal from the Essex County Court of Common Pleas.
For the plaintiff-appellant, Frank P. Zimmer.
For the defendant-respondent, McCarter, English & Studer (Nicholas Conover English and Conover English).
Before Case, Chief Justice, and Justices Parker and Burling.
The opinion of the court was delivered by
CASE, CHIEF JUSTICE. Plaintiff was employed by the defendant insurance company as an assistant manager in charge of a staff of eight or ten agents. His duties were performed in part at his desk and in part by accompanying and working with agents in the field. He had a disability policy issued by his employer which carried both total and partial disability benefits. He received an injury which the insurer concedes resulted in partial disability. Plaintiff contends for a total disability and sued for such a recovery. The judge submitted the issue to the jury which found specially that the defendant's liability was for partial disability and made an award of $325 to the plaintiff in accordance with the liability of the defendant under the policy provision for partial disability. The judgment carried no costs because tender of the amount of the award had been made.
The policy insured plaintiff for the fixed term of six months subject to renewal for successive like periods upon the continued payment of the policy premium. It named the occupation of the plaintiff as "insurance agent." It provided that if the insured should be injured after having changed his occupation to one classified as more hazardous the policy would be modified by the company's classification of risks and premium rates and that if the insured should change to an occupation classed as less hazardous he might, on request, have the policy canceled and the unearned premium returned. The successive changes later made in the character of the plaintiff's duties did not change the classified hazard of the risk. The compensation for total disability was $25 per week during disability and for partial disability was $12.50 per week during that disability but not exceeding twenty-six weeks. The application stated plaintiff's occupation as "insurance
agent," his duties as "canvassing and collecting" in the employ of Metropolitan Life Insurance Company which was engaged in the business of life insurance. About 1935 plaintiff was promoted to the position of assistant manager in the Newark district and was so employed at the time of his injury, August 26th, 1940. His weekly earnings as assistant manager were approximately $65.50.
The injury affected the peroneal nerve which enervated the various groups of muscles having to do with the raising and lowering of the left foot. There is a paralysis of the left foot -- a "drop foot" -- which requires the use of a brace. In addition, the plaintiff wears an elastic stocking. The use of the left foot and left leg is impaired, and plaintiff is unable to climb stairs without pulling with his arms. On April 10th, 1943, he was and still is employed by the defendant as an industrial underwriter, a desk job, with average weekly compensation up to January 1st, 1945, of $65.85 and since January 1st, 1945, of $79. It is conceded that from the time of the injury to the beginning of that employment plaintiff was paid the full weekly indemnity of $25.
The policy was automatically renewed at each half-yearly period and, to the knowledge and with the participation of both plaintiff and defendant, had remained in force throughout the employment as assistant manager extending over a period of five years before the injury occurred. By our construction the effective occupation with regard to the disability was that of assistant manager. There is testimony that the work week of the plaintiff as assistant manager averaged less than 60 hours and that, of the total, 18 hours were spent in the office and the rest in the field. Mathematically, therefore, if that evidence is true, plaintiff, as assistant manager, averaged a trifle less than one-third of his time at desk duties. On February 2d, 1943, plaintiff filed with the company a statement wherein he indicated that he would be able to do work which would not require "walking, standing or climbing stairs continuously." At the same time he filed a physician's certificate which stated that plaintiff was then able to engage in work which did not require the continuous use of his legs. A medical witness testified at the
trial that the plaintiff could perform the great bulk of his former duties but with lessened efficiency. Asked on cross-examination how many of plaintiff's duties plaintiff could perform without wearing the elastic bandage and the brace, the doctor replied, "he could perform most of them, but with lessened efficiency again. By raising the knee high he can clear the toe from the ...