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Dittmar v. Continental Casualty Co.

Decided: April 20, 1959.

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



On appeal from Superior Court, Appellate Division, whose opinion is reported in 50 N.J. Super. 593.

For affirmance -- Justice Hall. For reversal and remand -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis and Proctor. The opinion of the court was delivered by Burling, J.

Burling

This is an action brought to recover total disability payments pursuant to a business and professional accident and sickness policy issued by defendant to plaintiff. The Superior Court, Law Division, sitting without a jury, determined that under the facts and the terms of the policy plaintiff was totally disabled and was entitled to recover $100 monthly for life. Defendant made a motion for a new trial which was denied, and then prosecuted an appeal to the Superior Court, Appellate Division.

The Appellate Division determined that plaintiff was only partially disabled under the terms of the policy and modified the judgment of the trial court accordingly by providing that plaintiff is entitled to total disability ($100 per month) for no more than 12 months in all, and partial disability at a 40% rate for three additional months. 50 N.J. Super. 593. We granted plaintiff's petition for certification to review the cause. 28 N.J. 39.

On April 9, 1955 plaintiff accidentally fell into a gasoline fire, severely burning his right hand and arm. He was hospitalized for a period of 57 days and required two operations and two skin grafts. As a result, plaintiff's right arm is totally useless and, because of the nature of the injuries to his arm, his total efficiency is greatly impaired. He cannot stay out of doors for longer than 10 or 15 minutes in cold weather as his right hand becomes numb and pains him and he cannot manipulate his fingers; in warm weather out of doors and in the sun the hand swells and breaks out with blisters. As plaintiff's treating physician testified, these

symptoms are due to impairment of the blood vessels beneath the skin of his right arm which normally serve the function of heating that extremity in cold weather and to the fact that there are no sweat glands left on the arm, the skin having been totally burned away, so that in hot weather the arm burns and stings.

Plaintiff is by trade a self-employed electrical contractor. The policy in question had been issued to him on April 21, 1954. In the application form plaintiff described his occupation as "Electrical Contractor" and his duties as "Working Contractor" and further stated that he was self-employed.

The critical language of the policy for purposes of determining the present dispute is as follows:

"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. When such disability commenced after the Insured's sixtieth birthday and such birthday occurs more than two years after the effective date of this policy, the indemnity otherwise payable under this Paragraph A will be reduced fifty per cent.

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." (Emphasis supplied)

The plaintiff is 48 years of age and has been in the electrical contracting business for 32 years. He left school in the eighth grade to go to work for his father who was

in the electrical business, and worked as an employee of his father until 1950 when his father died. Plaintiff never worked for anyone other than his father, and during that time did physical work only, the general management and supervision of the business being performed by his father.

Upon the death of his father plaintiff succeeded to the business and continued its operation. He then undertook the managerial and supervisory functions of the enterprise, soliciting contracts, estimating jobs, purchasing supplies, and checking on complaints. He was assisted by a female cousin, originally employed by his father as a secretary who has been "running the office" for some 25 years.

Further, prior to the accident plaintiff was basically an electrician. He employed one and sometimes two men to assist him, depending on the extent of the work to be performed. These employees were paid by the hour. Plaintiff worked physically full time on every job, at the same time, of course, generally supervising the one or two employees who worked with him. If the particular job demanded only one person, plaintiff performed the work himself and also did all emergency work himself.

Since the accident it is undisputed that plaintiff has been totally disabled from performing the manual labor relating to his occupation as an electrician. The injury to his right arm is such that he is unable to climb poles, use heavy tools, handle heavy material, or control light tools despite his attempts to do so. Moreover, he cannot remain ...


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