Andrews v. Travelers Insurance

Appellate Division of the Supreme Court of New York

Andrews v. Travelers Insurance

269 A.D. 1011, 58 N.Y.S.2d 886, 1945 N.Y. App. Div. LEXIS 5032

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 15, 1945

StatusPublished

Cited by1 cases

This text of 269 A.D. 1011 (Andrews v. Travelers Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Andrews v. Travelers Insurance, 269 A.D. 1011, 58 N.Y.S.2d 886, 1945 N.Y. App. Div. LEXIS 5032 (N.Y. Ct. App. 1945).

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Opinion

Judgment reversed on the law, with costs, and complaint dismissed, with costs. Memorandum: The total disability clause and the partial disability clause in this insurance contract must be read together. When so read, it is clear that, total disability" is such disability as “ wholly prevents him from performing each and every duty of his occupation ”, Partial disability is such disability as “wholly prevents the Insured from performing one or more important daily duties of his occupation ”, The language used is not ambiguous and should be construed according to its ordinary meaning. (Johnson v. Travelers Insurance Co., 269 N. Y. 401, 407.) Plaintiff admits that he can use his right hand and arm within the range of motion remaining in his right shoulder. His attending physician, as well as the doctors sworn by the defendant, also state that he can. His employment record since his injury also indicates his ability to do so. It appears from the evidence, and is almost a matter of common knowledge, that many of the duties of the occupation of “House painter, inside and outside, and electrician, wiring houses inside only ”, can be, and customarily are performed, without necessity that the workman use his right arm beyond the limit of plaintiff’s present ability to use his right arm. We think there was no question of fact to be passed upon by the jury. We think also that to construe the language of the insurance contract so as to include plaintiff’s disability within the category of “ total disability ” would amount to a rewriting of the policy rather than a construction of the same. All concur, except Dowling, J., not voting, and Harris, J., who dissents and votes for affirmance. (The judgment is for plaintiff in an action under a sick and accident insurance policy.) Present — Taylor, P. J., Dowling, Harris, McCurn and Larkin, JJ.

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Judgment reversed on the law, with costs, and complaint dismissed, with costs. Memorandum: The total disability clause and the partial disability clause in this insurance contract must be read together. When so read, it is clear that, total disability" is such disability as “ wholly prevents him from performing each and every duty of his occupation ”, Partial disability is such disability as “wholly prevents the Insured from performing one or more important daily duties of his occupation ”, The language used is not ambiguous and should be construed according to its ordinary meaning. (Johnson v. Travelers Insurance Co., 269 N. Y. 401, 407.) Plaintiff admits that he can use his right hand and arm within the range of motion remaining in his right shoulder. His attending physician, as well as the doctors sworn by the defendant, also state that he can. His employment record since his injury also indicates his ability to do so. It appears from the evidence, and is almost a matter of common knowledge, that many of the duties of the occupation of “House painter, inside and outside, and electrician, wiring houses inside only ”, can be, and customarily are performed, without necessity that the workman use his right arm beyond the limit of plaintiff’s present ability to use his right arm. We think there was no question of fact to be passed upon by the jury. We think also that to construe the language of the insurance contract so as to include plaintiff’s disability within the category of “ total disability ” would amount to a rewriting of the policy rather than a construction of the same. All concur, except Dowling, J., not voting, and Harris, J., who dissents and votes for affirmance. (The judgment is for plaintiff in an action under a sick and accident insurance policy.) Present — Taylor, P. J., Dowling, Harris, McCurn and Larkin, JJ.

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Bluebook (online)

269 A.D. 1011, 58 N.Y.S.2d 886, 1945 N.Y. App. Div. LEXIS 5032, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrews-v-travelers-insurance-nyappdiv-1945.

Opinion

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