Bylow v. Union Casualty & Surety Co.

Tart, C. J. This case is brought to this court by exceptions from the City Court of Barre. The plaintiff was insured by the defendant company against accident and in order to entitle him to recover, one condition of the policy was, that the accident which caused the injury for which he seeks to recover should “immediately and independently of all other causes and wholly and continuously disable and prevent the insured from performing any and every kind of duty pertaining to his occupation.” It appears by the policy that the plaintiff’s occupation was a lumper in a granite cutting yard, the duties of which employment were “overseeing and changing and boxing granite, loading and unloading cars.” The plaintiff’s thumb was injured when at work as such lumper and he continued thereafter in the employ of the granite firm in superintending the work that he [326] had been previously doing. To oversee is to superintend. Webster’s Int. Die. 1024. It thus appears that he was not wholly and continuously disabled and prevented from performing any and every kind of duty pertaining to his occupation for he continued in the employ of the same firm in connection with his duties, performing them in part, receiving ninety per cent, of his full pay, working nine hours daily instead of ten at the same rate per hour that had been' paid him. Under this state of facts he is not entitled to-recover. Judgment of the Cit/y Court is reversed and judgment for the defendant for its costs.