I concur in the result, The language of insurance policies must be construed in the light of circumstances existing in particular cases. There can be no hard and fast rule of general application to the question of total and permanent disability. In practical application the terms are relative and in a measure elastic. (Atlantic Life Ins. Co. v. Worley, 161 Va. 951, 960; 172 S, E. 168.) In the cases of accident and health insurance, it is not necessary to show that a person is absolutely bedridden or permanently confined to a chair to constitute total disability. (Metropolitan Life Ins, Co. v. Foster, 67 F. [2d] 264, 266; Phillips v. Mutual Life Ins. Co., [La. App.] 155 So. 487; Mutual Life Ins. Co. v. Beckmann, 261 Ky. 286; 87 S. W. [2d] 602.)
Here the language was that the insured must be “ continuously and wholly prevented * * * from performing any work for compensation, gain or profit, and from following any gainful occupation ” in order to recover benefits; and, further, total disability was defined as “ any impairment of mind or body which continuously renders it impossible for the Insured to follow a gainful occupation.” These words, chosen by the insurer, must be interpreted in the light of reason. If the insurer intended to limit its liability to one who was entirely unable to function physically or whose *452mind was so impaired that any intellectual work was impossible, then the policies should so state in plain words. This would permit those seeking insurance to understand fully the contract tendered them. These policies are written generally for men of known occupations; and I regard it of little consequence in this case that sometimes the insurer issues policies for particular occupations involving special risks.
A lawyer, a physician, an educator or a clergyman would fail to appreciate the legal effect of a policy of the present type if it meant that no matter how serious the accident or disabling disease, perhaps resulting in loss of locomotion or of power to use the voice, or total loss of sight, they still might find remunerative employment as a night watchman or a laborer, or have ability to do some work with the hands while sitting paralyzed in a chair, and, therefore, could not recover under the terms of the policy because they might follow “ a gainful occupation.” In such cases the insurer would naturally construe the policy as furnishing security to a professional man to whom it offered a policy; and so the courts may construe it in other cases where in practical effect the insured has lost all opportunities of reasonably gainful employment.
The nature and extent of disablement and the ability to engage in gainful employment naturally present great variance in different cases. In the case under consideration, the plaintiff claimed he was afflicted with a heart ailment which was so disabling that he could follow no gainful employment for which he was fitted. For a time payments were made by defendant, but later discontinued. There was sharp dispute in the medical evidence as to whether he had any heart disease of a disabling nature, and, even if partly disabled, whether plaintiff could resume an occupation of the same or relatively similar nature for which he was physically or intellectually fitted. In part such evidence was admitted, but the trial justice excluded such evidence on cross-examination of plaintiff’s medical witness, and, in part, on examination of defendant’s medical witness. This constituted more serious error than that alleged to exist in the charge. The jury did not have all the facts before them in reaching a determination. The defendant should have been allowed wide latitude in making proof of plaintiff’s physical condition and his ability to be gainfully employed.
In all cases the language of decisions on the subject must be read in the light of the proof of the particular cases. Sometimes it may be said as a matter of law that there is no total and permanent disability and that the insured is able to engage in some occupation for which he is reasonably fitted and for a compensation *453reasonably comparable to that which he was receiving before he was partly disabled by accident or disease. (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.) At other times there may be presented a question of fact. (Turcsynski v. John Hancock Mutual Life Ins. Co., 245 App. Div. 903; affd., 271 N. Y. 573.) The instruction to be given to the jury must be something more than abstract rules of the usual character lifted bodily from opinions dealing with cases of a different type.
The rule in the majority opinion, formulated from the authorities cited, may be useful in a general way but it is not one of absolute application to every conceivable case, as will no doubt be discovered in practice. In so far as the opinion states or implies that the rule justifies the strict and limited application of the language of the policy so as to prevent recovery by one so disabled that he must accept employment of any nature, I disagree.
The Arico case (241 App. Div. 826) states the correct rule as applied to the facts presented there. It may not be applicable to other states of facts. There must be discrimination in the, application of any general rule to the particular facts of each] litigated case.
Order of Appellate Term affirming a judgment of the Municipal Court of the City of New York, Borough of Queens, 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 the Appellate Term to abide the event.