
    Wolcott v. United Life & Accident Ins. Ass’n.
    
      (Supreme Court, General Term, Fifth Department.
    
    December 30, 1889.)
    1. Accident Insubance—Total Disability—Physicians.
    On an insurance policy for the payment of a certain sum weekly during total disability from accident, a physician, who is a policy-holder, is entitled to pay for a time when he was confined to his bed by an accident, though during that time he occasionally examined and prescribed for patients who came to his bedside, and reached for medicines for them without leaving his bed.
    2. Same—Evidence.
    The testimony of plaintiff as to what his surgeon said, not having been objected to as hearsay, was not objectionable on the ground that it did not cover the time specified in the complaint, as the surgeon’s testimony subsequently confirmed plaintiff’s statement, and showed that it was within the time alleged.
    Appeal from judgment on report of referee.
    
      Action by Edwin H. Wolcott against the United Life & Accident Insurance Association to recover weekly payments for total disability. On the filing of the report of the referee to whom the ease was referred, judgment was entered for plaintiff, from which defendant appeals.
    Argued before Barker, P. J., and Dwight and Macomber, JJ.
    
      John N. Beckley, for appellant. George C. Wolcott, for respondent.
   Macomber, J.

The action is upon a policy of insurance issued by the defendant to the plaintiff in November, 1887, whereby the defendant agreed to pay the plaintiff, in case of total disability resulting from external, violent, and accidental injury, the sum of $25 per week, but not to exceed 26 weeks in any one year. In the month of July, 1888, the plaintiff, it is conceded, met with an accident by which his hip was injured, without fault on his part, and was totally disabled for a period of at least two weeks. At the end of the two weeks, supposing himself to be substantially recovered, and able to resume his duties, which were those of a medical practitioner having in charge a general practice, he applied for payment to the defendant, and stated his claim to be for two weeks, at $25 per week. This sum was paid him, and a receipt was signed by him for the amount, but it was stated in the handwriting of the plaintiff, added to the printed form, to be up to date only. It turned out afterwards, upon evidence which is uncontradicted, that the injuries received in July again prostrated him, and he was confined to his room and bed for a- further period of four weeks, and was unable to go upon his rounds or to visit any patient. He did, however, during this time, as well as during the first two weeks of his confinement, occasionally permit a patient to come to his bedside, when he would make some examination, and at times reached for or received certain medicines in his room which he advised to be administered, but never, so far as the evidence shows, did he leave his bed during this time. His attending physician was very strenuous in enforcing his advice that he should remain in bed.

The question, therefore, is, from these facts, whether the plaintiff was totally disabled during the four weeks from the 13th day of September.to the 11th day of October, 1888; for the receipt which he gave did not preclude him from claiming for such subsequent total disability, which he did not apprehend when the first payment was made to him. Total disability must, of the necessity of the case, be a relative matter, and must depend largely upon the occupation and employment in which the party insured is engaged. One can readily understand how a person who labors with his hands would be totally disabled only when he cannot labor at all. But the same rule would not apply to the case of a professional man, whose duties require the activity of the brain, and which is not necessarily impaired by serious physical injury. If a person engaged in the general practice of medicine and surgery is unable to go about his business, enter his office, and make calls upon any of his patients, but is confined to the bed, as in this instance, and enabled only to exercise his mind on occasional applications to him for advice, he may be said to be totally disabled, within the meaning of the provisions of this policy. Bliss, Ins. 723 et seq.

It is argued that an exception was well taken in respect to the testimony of the plaintiff. He was asked this question: “Did you consult Dr. Lee at that time as to your then condition ?” “Yes, sir; he made an examination, and gave me an opinion. ” “What was that opinion,—what did he say?” This was “objected to as incompetent and irrelevant, not being embraced within the period of time referred to in the 'Complaint. Objection was overruled, and exception. ” This evidence could not have materially injured the defendant’s case, for the fact therein contained was reaffirmed by Dr. Lee, who was subsequently called. But the objection did not go to the extent of claiming that the question was incompetent because it was mere hearsay evidence, but it was put solely upon the ground that it was not embraced within the period of time referred to ih the complaint. This was untenable. When Dr. Lee was called upon the subject of the extent of the injuries of the plaintiff from September 13th to October 11th, he said unqualifiedly that he insisted upon the plaintiff retaining his bed for four weeks. He did so. There is no reason (in the absence of evidence that the confinement was caused by something else than the injuries received in July) why the plaintiff should not recover for those four weeks, as well as for the two immediately succeeding the time of the injury. The judgment should be affirmed. All concur.  