Opinion
June 28, 1939.
Present — Sears, P.J., Lewis, Cunningham, Taylor and Dowling, JJ.
Judgment and order reversed on the law and facts, with costs, and complaint dismissed, with costs. Memorandum: The verdict of the jury that the plaintiff was entitled to recovery under a group insurance policy which provided that an employee who while insured thereunder "becomes totally disabled and presumably will thereafter during life be unable to engage in any occupation or employment for wage or profit" is contrary to and against the weight of the evidence where it appears that the plaintiff, though suffering from silicosis during the period, did not know that he was suffering therefrom, did his full work every day, except one, during the entire period while the insurance was in force from April 30, 1933, to June 25, 1934, was not discharged because of any failure to do his work satisfactorily and did not consult a physician until March, 1938, shortly after which he first learned of his condition. We must interpret the words "total disability" as they would be interpreted by the ordinary business man and give them the meaning which they have in common thought and in common speech. (See Collis v. Massachusetts Bonding Ins. Co., 236 App. Div. 525; affd., 264 N.Y. 447; Silverstein v. Metropolitan Life Ins. Co., 254 id. 81, 84; Van Vechten v. American Eagle Fire Ins. Co., 239 id. 303, 306.) All concur. (The judgment is for plaintiff in an action to recover disability benefit under a group insurance policy. The order denies a motion for a new trial.)