
    Israel W. Baldwin, Plaintiff, v. The Fraternal Accident Association of America, Defendant.
    (Supreme Court, Steuben Special Term,
    July, 1897.)
    1. Accident insurance — Total disability.
    Where a policy o£ accident insurance provides that an injury upon which a'recovery may be had must be one which shall immediately and “ wholly ” disable the insured from transacting any and every kind of business pertaining to his occupation, and the insurer has, .by a printed manual, defined “ total disability ” as existing when a member is deprived, by accidental injury, of the power to perform substantially all the duties of the occupation under which he is insured, proof that, after the accident, the insured could not walk without crutches for eight or ten. months, could not engage in manual labor for more than, a year, and-could not for a year perform other customary labor, is sufficient to show that he was wholly disabled, notwithstanding the fact that, after a period of about two months, he attended daily at his store and that he kept certain books that were brought to him for that purpose during all the time that he was confined to his house.
    28. Same — Employment as a profession — Bicycle riding for pleasure.
    Stipulations as to accident insurance which provide that, in case the insured should be injured while engaged temporarily or otherwise in any occupation or exposure classified as more hazardous than that specified in the certificate, the indemnity shall be at the rate only of the more hazardous occupation, and which also provide that members of the higher classification accidentally injured while engaged in polo, base-ball games or “ bicycling ” shall receive only the indemnity provided for such games, does not prevent a recovery by a person who is injured, while riding a bicycle for pleasure, from recovering the full rate of indemnity provided for by the contract, as the provisions • of the policy must be taken to refer only to a person who is a professional bicyclist.
    3. Same — Void agreement for arbitration.
    A stipulation that, in the event of a disagreement between the insurer and the insured as to the liability of the insurer for an accident, such liability and its amount shall be determined by arbitration and that no suit shall be brought except to enforce the award, unless the insurer, after being requested in writing to do so, refuses to arbitrate, is not enforcible, as it constitutes an attempt to oust the court of jurisdiction "of the whole subject-matter.
    4. Same — Waiver of agreement to arbitrate.
    Where it appears, from the pleadings in an action, that the insured denies any liability, the denial amounts to a waiver of a condition of the policy which requires the insured to submit his claim to arbitratibn.
    Action to enforce alleged liability of defendant to plaintiff under a policy of accident insurance.
    John F. Parkhurst, for plaintiff.
    John B. Stanchfield, for defendant.
   Davy, J.

This action is brought to enforce an alleged liability of defendant to plaintiff under a policy of insurance made by the defendant, insuring the plaintiff against loss of time resulting from bodily injury through external, violent and accidental means which shall immediately and wholly disable him from transacting any and every kind of business pertaining to his occupation, and for such loss of time the defendant obligates itself to pay the plaintiff the sum of twenty dollars per week for á period not exceeding fifty-two weeks.

The complaint sets forth the terms of the policy and alleges that the plaintiff was injured by falling from a bicycle on the 3d ■day of May, 1894, whereby he was wholly disabled for a period of fifty-two weeks, and demanding judgment for the sum of one thousand and forty dollars.

The answer sets up a general denial of the complaint, except the allegation of the incorporation of the defendant. It also sets up as a separate defense that by the terms of the policy that, in the event the defendant and the insured, should disagree as to the liability of the defendant in case of an accident, such liability and the amount thereof should be determined by arbitration, and that no suit should be brought except to enforce the award, unless defendant, having been' requested to do so in writing, refused to arbitrate, and that no such request to arbitrate was made or arbitration had. The -answer also alleges that by the terms of the policy that in case the plaintiff should be injured while engaged temporarily or otherwise in any occupation or exposure classified as more hazardous than that specified in the certificate, the indemnity should be at the rate only of the more hazardous occupation. It also alleges that the plaintiff’s injuries were' received while riding a bicycle, an occupation or exposure classified as entitling the plaintiff to án indemnity of ten dollars per week only.

The evidence discloses that the plaintiff was an undertaker and furniture dealer and fifty years of age, who resided at Avoca, N..T. That on the 3d day of May, 1894, while riding a bicycle from his place of business to his dwelling-house, between 8 and 9 o’clock in the evening, he was thrown from the wheel and his right hip or pelvis was fractured from the injury which he received. The plaintiff was confined seven weeks in his house and was under the doctor’s treatment for ten months. It also appears that the effect of the injury was such that, after the plaintiff had been confined seven weeks in the house, he was unable to walk and had to be carried to his store until the succeeding winter, and was- not able, as- he claims, to do any manual labor during the year following the injury. It also appears that' after his confinement to the bed and house, which was seven or eight weeks, he was daily in attendance at his furniture and undertaking store, with the exception of two or three days immediately after the injury, and that he kept the books of the company, which were brought to him for that purpose, during the whole .time that he was confined at the house. The defenclant, by reason of these facts last' stated, contends that the plaintiff was not disabled from performing any and every kind of business pertaining to his oecupation, as stated in the certificate. To determine this question, it may be necessary to refer to the printed manual of the defendant received in evidence on the trial, which was. issued in March, 1894, and was in force at the time of this accident, which defines the meaning of total disability, as expressed in the insurance policy. It says: “ When a member is deprived by accidental injury covered by the policy.of the power to perform substantially all the duties of the occupation under which he is insured, he is wholly disabled within the meaning of the policy and entitled to indemnity.” This is the construction placed by the defendant upon its own policy of insurance. It would seem, therefore, that the disability of the plaintiff is fairly within the above rule. The evidence discloses the fact that he could not walk without crutches for eight or ten months after the accident, and was not able to engage in any manual labor for more than a year thereafter. TTis regular duties were to buy goods of agents and sell them to the people and repair furniture, such as chairs and tables, and he also trimmed caskets and made picture frames. That he was unable to perform any of • these labors during the entire 'year after the accident is clearly established by the evidence.

The learned counsel for the defendant contended on the argument that the plaintiff was injured while engagéd in a more hazardous occupation than the one designated in the policy. I am inclined to think that this refers to the person’s regular occupation.

The word “ occupation,” as used in the policy, is defined in the by-laws or manual of the defendant as follows: The restriction as to occupation applies only to those who follow such occupation as a trade or means of livelihood.” At the bottom of page 8 of the manual is the following note of explanation: For an injury received while engaged temporarily or otherwise in an occupation or employment classified as more hazardous than the one stated in the application, members will be entitled, to indemnity only at the rate provided for the occupation or employment in which they may be injured, and on changing occupation or employment they are to- notify in writing the association.” This stipulation evidently refers to the list of occupations - and the duties pertaining .thereto. If it referred to pastime amusements then the question would naturally arise, why was it necessary to notify the association in writing that the insured had changed his occupation or employment? The defendant also contends that the last sentence in the occupation clause specifically includes bicycle accidents. It inay be well, therefore, to notice the wording of this clause-in the policy, which reads: “Members of a higher classification accidentally injured while engaged in polo, base-ball games or bicycling will receive only the indemnity as herein'provided' for such games.” It seems to me that a person who only rides a bicycle occasionally for convenience and pleasure' is not a bicyclist within the meaning of said policy. The mere fact that a man rides a bicycle occasionally from his place of business to his dwelling-house does not make him by occupation a professional bicyclist. . The clause in the policy evidently has reference to those who are professional bicyclists and make their living by racing on the wheel. ' These are somewhat novel and interesting questions, but I am inclined to the opinion that the agreement expressed in the certificate of policy of insurance should receive a reasonable and fair construction, and that the interpretation and construction contended for by the defendant would be unjust to the plaintiff.

The defendant also contends that the plaintiff cannot maintain this action because he failed to comply with the express conditions-of the policy requiring him to submit the liability of the defendant to arbitration, and that a request in writing to arbitrate was a condition precedent to a right of action. The policy provides that, in the event that the insured or beneficiary and the association disagree as to the liability of the association., it is agreed that such liability and the amount thereof shall be determined by arbitration. The stipulation or agreement compels the plaintiff to submit all the issues that may arise as to the liability of the defendant-to arbitration, and if the arbitrators hold that the defendant is not liable the plaintiff is bound by their decision. The question is whether such an agreement is valid and binding upon the plaintiff.

It has been repeatedly held that any agreement which ousts the court of jurisdiction of the whole subject- matter and which is the sole and only remedy between the parties, is void. It seems to me that the parties have undertaken by this agreement to provide for the adjustment and settlement of all disputes and differences to the exclusion of the courts. The power delegated to the arbitrators to determine the liability of the defendant upon the policy must necessarily give the arbitrators the exclusive right to pass upon all disputed questions and controversies arising thereon.

The case of Sanford v. Travelers’ Mutual Accident Association, 147 N. Y. 326, was an action brought upon a certificate of insurance which contained a clause that, in case the beneficiary should bring an action upon the policy, the issues should be tried before a referee to be appointed by the court. The court held that a general covenant to submit any difference that may arise in the performance of a contract under an executory agreement is a nullity. Judge Gray, who wrote the opinion of the court, says: “The dictates of a sound public policy would seem to require that its contracts of insurance, while providing every wise and reasonable restriction, should not compel the individual who seeks to insure his life to submit, as a condition of obtaining that insurance, to conditions which are in violation of constitutional rights. Such a provision in the policy has no reasonable relation to the contract of insurance. Its insertion is unnecessary to the protection of the insurance company, and may be regarded, therefore, as an unimportant provision.”. He also says: “I think we may safely base the reason for the application of this rule upon the proposition that public policy is opposed to the enforcement of an agreement which supersedes the law and deprives the individual of the protection which . it was designed and framed to afford.” Delaware & Hudson Canal Co. v. Pennsylvania Coal Co., 50 N. Y. 250; Lang v. Eagle Fire Co., 42 N. Y. Supp. 543.

Where the sole question between the parties is as to the amount of indebtedness, such question might properly be ascertained by reference to arbitration, but even then, when it appears from the pleadings, as it does in this case, that the defendant denies any liability upon the policy, it amounts to a waiver of a condition in the policy of insurance requiring the plaintiff to submit his claim to arbitration. The rule is that the insurance company can claim no benefit from such a provision when it denies all liability under the policy. Lang v. Eagle Fire Co., supra.

The facts established by the evidence are sufficient, in my opinion, to entitle the plaintiff to a judgment for the amount demanded in the complaint, with costs.

Judgment for plaintiff, with costs.  