Page:Harvard Law Review Volume 4.djvu/195

TOTAL DISABILITY IN ACCIDENT INSURANCE. 1 79 construes the contract to mean something entirely different. The jury are directed that plaintiff may recover though he may be able to do some parts of the accustomed work pertaining to his business, so long as he cannot to some extent do all parts and engage in all the employ- ments thereof. Almost total soundness and ability, instead of total disability, is made the condition of plaintiff's right to recover, and of defendant's liability. The plaintiff is a carpenter. If he was simply disabled from going upon a four-story building to put on the roof, and could do everything else pertaining to his trade, he would under this instruction be entitled to recover fifteen dollars a week during the period of such disability. This is not the proper construction of the agreement. It interpolates into it terms and conditions upon which the parties never agreed, and attaches to the words employed a meaning of which they are not susceptible." In Saveland v. Fidelity and Casualty Company, 6^ Wis. 174 (1886), the case of the grocer referred to supra, the judge ruled at the trial that the plaintiff was entitled to recover for such time as by reason of the accident he was ** rendered wholly unable to do his accustomed labor; that is, to do substantially all kinds of his accustomed labor to some extent." The court reversed this ruling, holding that " the plaintiff's right to recover is necessarily restricted to the time he was wholly disabled and prevented from the prosecution of any and every kind of business pertaining to his occupation," and cited with approval Lyon v. Railway Passenger Assurance Company, supra. In Young v. Travelers Insurance Company, 80 Me. 244 (1888), the case of the billiard-saloon keeper, the court below ruled that the meaning of the language was, " not that he must be so disabled as to prevent him from doing anything whatsoever pertaining to his occupation, or to any part of his business per- taining to his occupation as billiard-saloon keeper, but that he must be so disabled as to prevent him from doing any and every kind of business pertaining to his occupation. There may be a difference between being able to perform any part of his business and any and every kind of business pertaining to his occupation. The court upheld these instructions, saying, " He was not able to prosecute his business unless he was able to do all the substantial acts necessary to be done in its prosecution. If the prosecution of the business required him to do several acts and perform several kinds of labor, and he was able to do and perform one only,