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:
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. * * *
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 ...