Page:Harvard Law Review Volume 4.djvu/197

TOTAL DISABILITY IN ACCIDENT INSURANCE. of briefs, or the care of trust property, or the drawing of deeds, or the searching of titles. To recover, he must be totally disabled from doing any of these various kinds of business. Again, take the case of a country store-keeper who is accustomed to keep his books, wait on customers, make change, etc. Suppose that his knee is injured, but that he can be taken to his store daily, can sit at his desk, make change, keep his accounts, keep up his correspondence, etc., but is obliged to hire a clerk to wait upon his customers. He ought, perhaps, to be protected by an accident policy, but he is certainly not protected by one which says that he cannot recover unless he is totally disabled from the transaction of any and every kind of business pertaining to the occupation of store-keeper. Keeping the books, or making change, is certainly a "kind of business" which a store-keeper has to perform.

On the other hand, "business" must not be confounded with "labor." A lawyer can write letters; that is labor, but it is not a kind of business pertaining to his occupation. A typewriter, however, who can write letters, can pursue an important "business pertaining to his occupation." To recover, therefore, a man does not have to remain flat on his back, fearing that the raising of his hand will drive away the benefits of his policy. He can labor all he desires, as long as he does not perform, even partially, any kind of business pertaining to his occupation. From this point of view the policy is not such a "delusion and a snare" as the Supreme Court of Maine has seen fit to call it. But even so, the remedy is not for the courts to stretch the construction of the language beyond its meaning, so that "totally disabled" means "partially disabled," but rather for the public to force the insurance companies to issue policies for partial disability by refusing to buy the present "total disability" policy.

Marland C. Hobbs.

, October, 1896.