Appeal from the Superior Court of Baltimore City; Harlan, J.
Hammond, Prescott, Horney, Marbury and Sybert, JJ. Hammond, J., delivered the opinion of the Court.
The trial judge sitting without a jury found that the appellee, Merrell M. Rief, who was insured by the appellant, Massachusetts Casualty Insurance Company, was "totally disabled" under the policy, which defined that phrase as "inability to engage in any part of the duties of the Insured's regular occupation." The insurer appeals from a judgment for the
sum of the accumulated monthly payments called for by the policy and a declaration that the payments continue to be made each month until the end of the full period stipulated by the policy.
Rief's regular occupation was that of an executive in S. Schapiro and Sons, Inc., a family company which did a worldwide business in buying and selling "scrap rags, old rags, and new scrap." His duties required him to keep continuously abreast of the fluctuations in prices of these commodities, fluctuations which were extreme and frequent. Rief deposed that the business was "a highly competitive and quick-changing market situation and because of that there was a tremendous amount of tension. * * * I had the responsibilities which would be a terrific strain on me and which is what the doctor told me I should not be subjected to * * *." Additional strain and tension were produced, he testified, by difficulties in regard to the quality of the scrap Schapiro bought and sold. Often there were misrepresentations as to the grade of scrap rags which the company bought. In such cases Rief would have to negotiate the differences between Schapiro and the seller. Although this seems to have been a continuing problem, Rief testified it caused him to become "very aggravated" in the first two months of 1958.
In February 1958 Rief suffered a heart attack and was in the hospital for some six weeks. In late May he returned to work for short periods on alternate afternoons, as his doctor advised.
On June 3 Rief suffered another heart attack and returned to the hospital for a week's stay. He has not since returned to his former occupation, on the recommendation of his physicians, although he has purchased for investment two business buildings and handled some of the leases, and has acquired and collects the receipts from two laundromats. He also has taken automobile trips and played some golf -- usually seven or nine holes on any one occasion.
The insurer paid total disability benefits to Rief from the date of his first attack until he returned to work in May and thereafter paid partial benefits until the second attack in June. Total benefit payments were resumed in June and were continued
until December 14, 1958, when the insurer refused to continue total benefit payments but offered partial benefits which Rief refused to accept.
In March 1960 Rief filed suit. In making the finding of total disability, the trial court applied to the policy (insuring against the inability to engage in the insured's regular occupation) the test this Court has established as to policies insuring against inability to engage in any gainful occupation, to the extent that it related to the insured's regular occupation. In so doing, we think he was right. As Judge Henderson explained for the Court in Travelers Ins. Co. v. Berlin, 185 Md. 404, 414 (1945):
"[ T ] he disability need only be such as to render the claimant unable to perform the substantial and material acts of his own or some other business or occupation in the usual or customary way. The disability clause does not insure against inability to pursue a particular occupation; if there is any other occupation open to the insured for which he may be fitted by education, training or experience and which, yielding a reasonably substantial gain or profit, rises to ...