Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
An adverse verdict was returned by a jury on plaintiff's suit on an employer's group life insurance policy which she claimed covered her deceased husband. On this appeal she charges certain trial errors and that the verdict was against the weight of the evidence.
Defendant insurance company issued a group life insurance contract to the American Tobacco Company covering its employees. Decedent, John Fannick, husband of plaintiff, as an employee of the company at the Wilkes-Barre, Pennsylvania factory, was protected under it. His employment as general plant help began on March 13, 1946 and his last day of actual work there was June 28, 1951.
On July 2, 1951 the plant began the annual vacation and there is no dispute that Fannick shared in it. The house which he and his wife occupied had been sold and about this time they came to New Jersey and began to live with their two children in East Orange. The children had been living with the parents in Pennsylvania and had moved to this State four or five months earlier because their work opportunities were better here. Mr. and Mrs. Fannick never again resumed residence in Pennsylvania. Fannick died on October 25, 1951.
Section 5 of the policy provides that the insurance shall cease automatically on the date of termination of the employment. Termination is defined as cessation of active work as a regular full-time employee except in case of absence on account of sickness, injury or retirement, or leave of absence or temporary layoff. When the exceptions applied, the employment continued until terminated by the employer, but in the case of leave of absence or temporary layoff a limitation of two months was imposed. The contention was advanced at the trial that a leave of absence had been granted by the employer, but it is completely unsupported by proof.
When Fannick failed to return to work after the vacation period his employment was terminated by the Tobacco Company on July 30, 1951. However, plaintiff's position is that the insurance coverage continued until the death in October
under the total disability clause of the policy. Section III stipulates, among other things, that if the employee's death occurs within one year after the termination of his employment and satisfactory proof is submitted that he was " totally disabled uninterruptedly from the date of the termination of employment to the date of his death " and such proof is submitted within one year after the date of death, the benefits shall be paid.
An insured is defined to be totally disabled when "as a result of bodily injury or disease" he is "wholly prevented thereby from engaging in any and every business or occupation and from performing any work for compensation or profit. * * *."
Such language does not impose a requirement that an insured must be absolutely helpless in order to qualify as totally disabled. A person may be able to do some work for compensation in an endeavor for which he is trained or qualified and yet be totally disabled within the fair and reasonable intendment of the policy. Woodrow v. Travelers Insurance Co. , 121 N.J.L. 170 (E. & A. 1938); Nickolopulos v. Equitable Life Assurance Society , 113 N.J.L. 450 (E. & A. 1934); Booth v. United States Fidelity & Guaranty Co. , 3 N.J. Misc. 735 (Sup. Ct. 1925). It is generally said that to justify a recovery the disability must be such as renders an insured unable to perform all the substantial and material acts necessary to the prosecution of his business or occupation in a customary and usual manner. And performance of regular work for an inconsequential period of time under the circumstances of a particular case may not stand in the way of recovery of the insurance benefits. 29 Am. Jur., Insurance , § 1161, p. 872.
The specific issue to be determined is whether Fannick was totally disabled on July 30, 1951, the employment termination date, and whether that disability continued uninterruptedly until October 25, 1951, the date of death.
He worked regularly for the Tobacco Company in Pennsylvania. No proof was offered to show any medical treatment there. Evidence did appear that no doctor was called
for him in the spring of 1951 while he and his wife lived there. The son, who had previously emigrated to New Jersey, said that he drove to Wilkes-Barre on July 1, apparently to assist them in coming here. At this time he noticed that his father had lost weight and was eating poorly and had an unusual hoarseness in his voice. Later in East Orange in the same month he noticed blood on his father's bed sheet and his inquiry produced Fannick's comment that it was "probably a discharge." Thereafter there was continuous loss of weight and he noticed also a limitation in the movements of his father's neck.
Dr. William Deignan asserted that Fannick visited him around the middle of July 1951 complaining of pain in the throat, stiffness of the right side of the neck and pain in the upper right chest. After examination, he thought cancer was present but did not know where it was located. Thereafter he "tried to build him up, gave him penicillin and advised X-rays and other laboratory work-ups." But Fannick became progressively worse. In September he was unable to leave the house and on October 9 he was admitted to the hospital.
This doctor's testimony came in for severe attack. He produced no records of his treatments in July or August, or of any X-rays or "work-ups" he claimed to have suggested. A signed memorandum was produced in which he said that Fannick's "first visit was made to my office September 24, 1951 and that thereafter treatments were administered daily until October 9 when he was admitted to St. Mary's Hospital, Orange, N.J."
Moreover, the St. Mary's Hospital record gives the history as "headaches, slowly increasing since about three weeks * * * states that he lost about 15 pounds in past few weeks." The record of the Newark Eye and Ear Infirmary where a brain operation was performed on October 23, says: "About a month ago he began to complain of pain back of head, believed he had a bad tooth, had a tooth extracted from right jaw but this did not give him any relief. * * * Has lost a lot of weight the past month * * *."
Death occurred two days after the operation. Autopsy showed the cause as cancer of the right kidney with metastasis to the liver, spleen, adrenals, lymph nodes and brain. Dr. Edward F. Murray, who performed the postmortem, said that the primary cancer was in the kidney and that the extensive nature of its diffusion indicated that it had existed for more than six months. He said also that kidney cancer does not as a rule manifest itself early in its growth and that until the ...