
    Neafie v. Manufacturers’ Accident Indemnity Co.
    
      (Supreme Court, General Term, Fifth Department.
    
    December 30, 1889.)
    1. Accident Insurance—Construction of Policy.
    An accident insurance policy, providing for the payment of a specified sum for disability incurred while engaged in his occupation as “an ice-man, proprietor, ” covers accidents occurring to the insured, who is the proprietor of an ice business, while engaged in the delivery of ice, though the rules of the company provide that a proprietor may insure at a fixed rate, while one delivering ice cannot receive so large a weekly sum.
    2. Same.
    Though the policy covers only total disability, and the insured is still able to give general directions as to his business, but unable to deliver ice, he can recover.
    Appeal from Ontario county court.
    Action by Henry A. Heafie against the Manufacturers’ Accident Indemnity Company of the United States to recover on an accident policy, brought before a justice. Judgment was rendered for plaintiff, and appealed to the county court, where an affirmance was had, and defendant again appeals.
    Argued before Barker, P. J., and Dwight and Macomber, JJ.
    
      John E. Bean, for appellant. E. M. Morse, for respondent.
   Macomber, J.

This action is brought upon a policy of insurance against accidents, by which, in case of personal injuries to the plaintiff, the defendant should pay him the sum of $20 per week, provided such injuries produced total inability to attend to the employment, or occupation, or profession in which the insured was engaged. The main contention made in behalf of the defendant against payment of the $20 a week during the time when the plaintiff was disabled from labor is that he, at the time of receiving the injuries, was an ice-deliverer only, and in a different class from an ice-man, who was a proprietor of a business, and that consequently the rate of indemnity was only $5 per week. The policy which was issued to the plaintiff contains this language, descriptive of the business of the plaintiff: “Henry E. Heafie, of Canandaigua, county of Ontario, state of Hew York, by profession, occupation, or employment, an ice-man, (Propr.,) member of this company, ” etc. Evidence was given that the rate at which a person who was the proprietor of the ice business might be insured was $20 a week, while in the class of a mere deliverer of ice, who was not a proprietor of the business, the extent was $5 per week. The expression, however, which is used in the policy is not that of a mere proprietor, who conducts a general ice business by advices from his office, but, on the contrary, it was that of an ice-man, or a man who might be a deliverer of ice, and who was at the same time the owner or proprietor of such business. The plaintiff received the injuries while engaged in the manual duties pertaining to the delivery of ice to bis customers. The circumstance that he was the proprietor is important only as showing the value of his time, and his ability to earn moneys. The weekly payments provided for by the policy are graduated according to the ability of the party insured to earn money in his employment, or occupation, or profession. There is a provision in the policy that if a person receives an injury while engaged temporarily or otherwise in an occupation or employment classified as more hazardous than the one stated in his application, indemnity shall be afforded only at the rate provided for the occupation or employment in which the injury is received. Ho partial defense is available to the defendant under this provision, for the reason that our construction of the language above quoted is that the occupation or employment of the plaintiff as an ice-man, adding the words “as proprietor,” did not describe him as only engaged in the management of a business, but was broad enough to include a practical and laboring man, engaged in the actual delivery of ice in his own behalf. Had he not been actually the proprietor of his own business, then, doubtless, the policy would not have provided any payment to him above five dollars a week, placing him in a class of mere laborers.

It is further claimed, in behalf of the defendant, that no recovery can be had, because no immediate notice of the accident was given to the company, in pursuance of the requirements of the policy. By inspection of the case, however, it is found that the company distinctly waived any defense of this kind in its communication, made by the secretary, to the plaintiff.

It is further contended that the disability caused by the injuries was partial only, and not total,, and that consequently, under the terms of the policy, no recovery can be had. It is true that no right of action accrues to the plaintiff, under the terms of the policy, unless the disability to pursue his vocation is total, and not merely partial. Knapp v. Association, 6 N. Y. Supp. 57. This question is to be determined by the language of the policy, in connection with that of the application, where it is said in the policy that he was by “occupation or employment an ice-man, (Propr.,)” and in the application, where it is said, “My occupation is fully described as follows: ‘Ice-man, proprietor.’” The circumstances of the case, in connection with the testimony, disclose the fact that the plaintiff, while not able, by reason of his personal injuries so received, to carry on the business-of delivering ice, was totally disabled, within the meaning of this policy, although, notwithstanding his injuries, he was able to give general directions to persons who took his place as an ice-man during the period of his disability. The judgment should be affirmed, with costs. All concur.  