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Dittmar v. Continental Casualty Co.

Decided: June 20, 1958.

HERMAN DITTMAR, PLAINTIFF-RESPONDENT,
v.
CONTINENTAL CASUALTY COMPANY, DEFENDANT-APPELLANT



Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Defendant appeals from a judgment of the Superior Court, Law Division, sitting without a jury, determining that plaintiff is totally disabled within the terms and meaning of its business and professional accident and sickness policy; that he is entitled to recover $1,995.50, representing total disability benefits of $100 per month from December 25, 1955 to June 25, 1957, inclusive of interest, plus the balance of hospital indemnity owed plaintiff under the policy; and that commencing June 25, 1957 defendant must pay him the sum of $100 per month so long as he may live. Defendant also appeals from the court's denial of its motion for a new trial.

The policy was issued April 21, 1954. The provisions pertinent to our inquiry are those contained in Part III of the policy, "Monthly Accident Indemnity," which reads:

"A. TOTAL DISABILITY. When, as the result of injury and commencing while this policy is in force, the Insured is wholly and continuously disabled and prevented from performing each and every duty pertaining to his occupation , the Company will pay the Monthly Indemnity stated in the Schedule for the period the Insured is so disabled, not to exceed twelve consecutive months. Subject to the 'Maximum Period Total Disability Accident Indemnity' stated in the Schedule and after the payment of Monthly Indemnity for twelve months as aforesaid, the Company will continue the payment of Monthly Indemnity so long as the Insured is wholly and continuously disabled and prevented by reason of said injury from engaging in each and every occupation or employment. * * *

B. PARTIAL DISABILITY. When, as the result of injury and commencing while this policy is in force or immediately following a period of total disability for which indemnity is payable under Paragraph A of this Part, the Insured is continuously disabled and prevented from performing one or more of the important duties of his occupation , the Company will pay forty per cent of the Monthly Indemnity stated in the Schedule for the period of such disability, not to exceed three consecutive months as the result of any one accident." (Italics ours)

The policy also provided for hospital indemnity at the rate of $100 a month for a period not exceeding three months for any one accident.

Plaintiff's application for the policy stated that his present occupation was "Electrical contractor," his duties "Working Contractor," and that he was self-employed.

On April 9, 1955 plaintiff accidentally fell into a gasoline fire, sustaining severe and extensive burns, particularly to his right hand and arm. He was hospitalized for more than 50 days and required two operations and two skin grafts. As a result of the accident, plaintiff's right arm is totally useless. Defendant paid plaintiff total disability benefits of $100 per month until December 25, 1955, together with $190 on account of hospital indemnity. It refused to make further monthly payments or to pay the $110 balance for the hospital indemnity, ostensibly because it felt plaintiff was no longer wholly disabled having resumed the management of his business. Plaintiff thereupon sued to recover past-due monthly indemnity from December 25, 1955 and the $110 balance of hospital indemnity, and further demanded judgment that defendant continue to pay him $100 a month so long as he

may live. The defense was that plaintiff's alleged loss did not come within the coverage of the policy and that under its terms and in the light of proofs submitted, he had been tendered the full amount due him, if any, for his alleged disability.

Plaintiff was 48 years old at the time of the trial and had been in the electrical business for 32 years. He left eighth grade to go to work for his father, an electrical contractor; he did only physical work, having nothing to do with management. When his father died in 1950 he continued the conduct of the business. Plaintiff testified that he would go out on various jobs with his men, working right along with them while he supervised what they were to do. He employed one man and sometimes two, depending on the work load, and he himself did all the work on weekends and in emergencies. He also performed all the managerial duties of the business, previously discharged by his father, such as soliciting jobs, estimating, purchasing supplies, checking on complaints, etc., with the assistance of a cousin who was his secretary.

Since the accident plaintiff cannot use his right arm in any way and therefore cannot perform the physical work of electrician which he had been accustomed to doing when he was out on jobs with his employees. This is not disputed. Medical witnesses testified that the arm is permanently injured; further medical or surgical treatment will not result in improvement. Otherwise, plaintiff's faculties are unimpaired. His doctors concede that he can supervise and direct his business -- he can do everything generally associated with management, barring the physical use of his right arm. It was testified that plaintiff cannot remain outside in either very cold or very hot weather because of skin impairment. In the cold his arm becomes numb and pains him; in hot weather the arm burns and stings because of the absence of sweat glands.

Plaintiff returned to his business in November 1955, some seven months after the accident. He has continued in the electrical contracting ...


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