The order under review affirms a judgment of the Municipal Court of the City of New York, Borough of Queens, awarding monthly disability benefit payments to an assured under two policies of life insurance and a refund of a quarterly premium under the waiver of premium clause in a third policy. In two of the policies the insurer agrees that upon proof that the insured is totally and permanently disabled, it will pay the insured a stipulated monthly income. The other policy contains a provision only for waiver of payment of premiums.
Total disability is defined in the respective policies as follows: “ If the Insured * * * shall * * * furnish due proof to the Company at its Home Office * * * that he has become totally and permanently disabled by bodily injury or disease, so that he is, and will be, permanently, continuously and wholly prevented thereby from performing any work for compensation, gain or profit, and from following any gainful occupation, * * * the Company, upon receipt and approval of such proof, will grant the following benefits: * * * Disability shall be considered total when there is any impairment of mind or body which continuously renders it impossible for the Insured to follow a gainful occupation.” The sole issue presented was whether or not the plaintiff was totally and permanently disabledjwithin the meaning of the policies. This disputed question of fact was resolved against the insurance company by the jury upon evidence which amply supports the finding. However, the trial court in submitting the case to the jury charged that the plaintiff must show by a fair preponderance of the evidence “ that he was totally and permanently disabled from carrying on the occupation in which he had been trained and *450worked during Ms working life, namely, the general insurance business, or employment in work of the same general character where he could be gainfully employed in an occupation reasonably comparable in type and remuneration to that in wMch he was employed at the time of tMs disease that he complains about that has totally and permanently disabled him.”
Defendant duly excepted to that portion of the charge, and in that connection we are called upon to determine its effect and the correct interpretation of the language in the policies providing for benefits as a consequence of disability. Insurance of tMs kind usually falls into two classes. One may be termed occupational and the other general. The one undertakes specifically to insure only against disability to transact the duties pertaimng to, or to perform labor m, a particular occupation — usually that in wMch the person insured is at the time, or customarily, engaged. The other undertakes to insure against disability from performing any sort of remunerative labor.
In my opinion the charge was erroneous. The court submitted to the jury the question whether the plaintiff was disabled from carrying on “ the occupation m wMch he had been trained and worked durmg Ms working life, namely, the general insurance business, or employment in work of the same general character,” and it was left to the jury to decide the case on that principle. That changed the policies from protection against total permanent disability to occupational insurance covering occupations restricted in character and limited in number. It altered the coverage of the policies from one of protection against disability that would prevent the insured from performing any work for compensation, gain or profit, and from followmg any gamful occupation, to one of protection agamst disability to pursue one’s usual occupation, or an occupation of the same general character.
These contracts should be construed reasonably and given a practical application. (Williams v. John Hancock Mutual Life Ins. Co., 245 App. Div. 585.) It may be that a different rule is applicable in the case of mutual benefit societies, where the element of benevolence, charity and fraternity is involved, and where the rule may be more liberal.
The total disability contemplated by the particular policies of insurance before this court wMch would justify recovery thereunder is an infirmity from bodily injury or disease that prevents the insured from following any substantial or remunerative occupation, or from domg any labor for wMch he is fitted or qualified, mentally and physically, and by wMch he is able to earn a livelihood. This was the test laid down by the Court of Appeals of Kentucky *451in Prudential Ins. Co. of America v. Harris (254 Ky. 23; 70 S, W. [2d] 949), with which this court is in accord. It is supported by the decisions in Atlantic Life Ins. Co. v. Worley (161 Va, 951; 172 S, E. 168); White v. Ætna Life Ins. Co. ([W. Va.] 185 S. E. 236, not officially published); Metropolitan Life Ins. Co. v. Foster (67 F. [2d] 264); Cooper v. Metropolitan Life Ins. Co. (317 Penn. St. 405; 177 A. 43); Williams v. John Hancock Mutual Life Ins. Co. (245 App. Div. 585); Garms v. Travelers Ins. Co. (242 id. 230; affd., 266 N. Y. 446); Finkelstein v. John Hancock Mut. Life Ins. Co. (247 App. Div, 74); Muzio v. Metropolitan Life Ins. Co. (249 id. 177).
The decision of this court in Arico v. Prudential Insurance Co. (241 App. Div. 826) was predicated on a record of an inconclusive character and was to the effect that a more complete showing of the facts was necessary. It is to be confined to the particular facts involved there.
The order of the Appellate Term affirming a judgment of the Municipal Court of the City of New York, Borough of Queens, in favor of plaintiff, should be reversed on the law and the facts, judgment of the Municipal Court vacated, and a new trial ordered, with costs in this court and in Appellate Term to abide the event.
Carswell, Johnston and Close, JJ., concur; Davis, J., concurs in result, with separate opinion.