#### James G. Knapp, Resp’t, *v.*The Preferred Mutual Accident Association of New York, App’lt.

*(Supreme Court, General Term, Fifth Department,*

*Filed June 22, 1889.)*

Insurance—(Accident)—Indemnity against loss of time—When re COVERT CANNOT BE HAD.

In an action to recover indemnity for loss of time, under a policy of insurance for personal injuries, the undertaking of the defendant was to indemnify against loss of time in the prosecution of the occupation under which the insured received membership, and the injuries must be such as to “wholly disable and prevent him from the prosecution of any and every kind of business pertaining” to such occupation. Plaintiff’s occupation was that of a retired gentleman, having no other occupation than to amuse himself. He was operating a buzz saw when he received his injury, which consisted of a bruise and cut on the back of his right hand, caused by a blow from a stick he was sawing. Plaintiff was deprived of the use of his hand for several months. *H Id,*that the disability incurred was not *“*total,” within the definition of the contract, and that the injury sustained, occurring from voluntary exposure to danger, -no recovery can be had.

Appeal from a judgment entered, on the verdict of a jury, and from an order at the circuit, denying the defendant’s motion for a new trial on the minutes of the court.

*E. C. Aiken,*for app’lt; *Tabor & Brainard,*for resp’t.

Dwight, J.

The action was on a policy of insurance, in the form of a certificate of membership of the plaintiff in the defendant association. The insurance was against death or total disability, resulting from “bodily injuries effected through external, violent and accidental means,” payable, in case of death, to the beneficiary named in the contract, and, in case of disability, to the plaintiff himself. The total disability insured against was defined in the following language:

“If said member shall sustain bodily injuries by means, *883as aforesaid, which shall, independently of all other causes, immediately and wholly disable and prevent him from the prosecution of any and every kind of business pertaining to the occupation under which he receives membershipand the undertaking was in such case to “indemnify the assured against loss of time thereby in a sum not to exceed twenty-five dollars a week, for such period of total disability as shall immediately follow the accident and injuries as aforesaid, not exceeding,” etc.

The occupation under which the plaintiff received membership was stated in the contract to be that of “a retired.” It may be assumed that the substantive “gentleman,” or some equivalent, was omitted, by clerical error, after the adjective “ retired ” in this description. The plaintiff testified that, at the time he made his application for insurance, he had no occupation except to amuse himself; that his income was derived from investments; that he had a shop at his house, where he spent some leisure moments working at different things, for his amusement; a steam yacht on Owasco lake, which he ran himself, and a horse and carriage for his own driving; that he was a stockholder and director in a wagon manufacturing company, and at times used some of the machinery of the wagon shops in connection with his amusement.

It was when operating a buzz saw at the wagon shops that he received the injury for which he seeks to recover indemnity under his certificate or policy of insurance. The injury consisted of a bruise and cut on the back of his right hand, caused by a blow from a stick, which he was sawing, being thrown backwards by the saw. The wound was severe and painful, the hand required to be carried in a sling, and the plaintiff was deprived of its use, to a greater or less extent, during a period of some months; for the loss of which time he was awarded compensation by the verdict in this action.

Among the conditions of the contract, besides those already mentioned, was the following: “This certificate shall be wholly void as to all accidents occurring in any occupation, profession or employment, or exposure not named, or incident to the occupation under which he receives membership;” by which is, apparently, intended “any occupation, etc., not named in the certificate as that of the insured, or any exposure not incident to the occupation named.”

Two questions arise upon the facts thus stated, both of which seem to have been presented by the motion for a non-suit, and the exceptions to the charge, viz : *First,*did the injury sustained by the plaintiff result from an exposure not incident to the plaintiff’s occupation named in the contract? and, *second,*was the disability incurred “total” within the definition of the contract ? Both of these questions, we think, require to be answered in the negative and, therefore, adversely to the plaintiff’s claim.

*884The undertaking of the defendant, as expressed in the contract, was not to indemnify against pain, suffering or inconvenience, but against loss of time in the prosecution of the occupation under which the insured received membership; and the injuries must be such as to “wholly disable and prevent him from the prosecution of any and every kind of business pertaining” to such occupation. Can it be said that a man with his hand in a sling, and suffering a degree of discomfort from a painful wound in that member, is wholly disabled and prevented from the presecution of every kind of business pertaining to the condition of a retired gentlemen? The question is one which does not seem to admit of much discussion, but it would be easy to suggest many duties, and even pleasures, pertaining to the domestic, social and business relations of a retired gentlemen, from which he would not be wholly debarred by a disabled hand. He might still, it would seem, keep an eye upon his investments, collect and disburse—or reinvest—his income, attend the meetings of the boards of directors of which he was a member, superintend repairs and improvements to his property, and, generally, devote considerable attention to the care of himself, his family and his estate. That the plaintiff was totally disabled and prevented from any and every kind of business pertaining to the situation in life which he ascribes to himself, seems not to be established by the evidence before us.

But his case seems to us to be even more clearly excluded from the provisions of the contract, by the answer to the first of the two questions above suggested. The work of operating a buzz saw is proverbially dangerous; and is probably, not less so when engaged in for amusement, than when practiced as a business or occupation. The dangers are such as probably to exclude the case of one engaged in the business from the class of preferred risks The injury sustained by the plaintiff occurred from voluntary exposure to those dangers. Can it be said that such exposure was incident to the occupation or condition of a retired gentleman? If not, the contract was, by its terms, void as to the-accident resulting therefrom.

Upon either and both of the grounds considered we think the motion for a non-suit was well based, and that its denial was error for which a new trial must be granted.

Judgment reversed, and new trial granted.

All concur.