#### NEILL v. ORDER OF UNITED FRIENDS.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

Mutual Benefit Insurance—Disabilities.

Under a by-law of a benefit society providing that, should a member become permanently disabled from following his “usual or some other occupation,” he should be entitled to half the amount of the certificate, a member who is disabled from following his usual employment is entitled to such portion of the benefit, though he is not disabled from following some other occupation.

Appeal from circuit court, Orange county.

Action by Thomas Neill, Jr., against the Order of United Friends to recover $1,500, being one-half the death benefit given to a member *929who met with a total disability under the constitution and by-laws of defendant. The complaint was dismissed, and plaintiff appeals. Reversed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

W. F. O’Neill, for appellant.

Hackett & Williams, for respondent.

BROWN, P. J.

This action was upon a certificate of membership in the defendant corporation, which provided that “Thomas Neill, Jr., * * is a beneficiary member of the Order of United Friends, and entitled to all the rights and privileges of such membership, and a benefit of not exceeding three thousand dollars from the relief fund, which sum shall at death be paid to his wife,” etc. By the by-laws of the order it was provided that “should a member become permanently disabled from following his or her usual or some other occupation, by reason of accident or disease,” he was entitled, after examination, and upon approval of his application by certain officers named, to one-half the amount of his relief fund certificate, to be paid to him, and deducted from the total benefit due at death. The plaintiff was a brakeman in the employ of the Ontario & Western Railway, and was pushed from his train by a tramp. His foot was crushed by the cars, and afterwards amputated, rendering him thereafter unable to follow the work of a brakeman. He was out of work for four months, and was then given employment by the railway company in watching a tower, and after that in watching a milk car at Weehawken. It was stipulated by the parties that, at the time of the injury and ever since, the assessments levied by the defendant were sufficient to pay the plaintiff $1,500. The complaint was dismissed at the close of plaintiff’s evidence, upon the ground that the loss of plaintiff’s foot did not disable him from following his usual or some other occupation.

It would seem as if the language of this provision must have been chosen for the purpose of raising disputes as to the right of a beneficiary to recover, rather than to make plain the intent and meaning of the contract. If the intention was to afford an insurance during the life of a member only in case of his inability to perform his usual and all other occupations, the contract should have so stated. But. the expression “some other occupation” is not the equivalent of “all other occupations.” And if it was intended to provide a benefit fund only in case a member was disabled so that he could not follow any occupation, it was wholly unnecessary to make any reference to his usual occupation. ' It would rarely happen that a person would be disabled so that he could not follow some occupation; yet, if the meaning of the provision is as claimed by defendant, the ability to work at any employment, no matter how trivial it was, would defeat a recovery. In construing such a provision in a contract as the one under consideration, the court will give it such meaning as will be consistent with the fair import of the words used, having reference to the purpose and object of the parties in entering into the agreement, and, as the language is that of the defendant, a construction *930will not be adopted which will defeat a recovery, if it is susceptible of a meaning which will permit one. The' expression quoted from the by-laws admits of two meanings,—one which treats the disability as a condition which would render the beneficiary unable to work, and the other which treats the occupation as the source or occasion of the disability. The intent of the parties, as manifested by the last reading, would be that a member would be entitled to the benefit fund provided that the accident or disease which caused his disability arose from his employment; that is, if the accident happened, or the disease had its source, in his occupation. In other words, it refers the disability to the occupation, and makes its source the test of the company’s liability. As the accident which caused plaintiff’s disability happened while engaged in his usual employment, his case falls within this construction of the contract. Under the other reading, the source of the accident or disease causing disability is of no importance. Inability to labor is made the test of liability, and the member becomes entitled to the benefit fund provided he is unable to follow his usual occupation or some other occupation. The defendant reads this sentence as if “or” was “and,” and “some other” “all other.” It cannot be so construed. The word “or” creates two cases in which the member may become entitled to the benefit fund. Who would be included in the second class of cases we need not now determine. When a member, who is permanently disabled from following some occupation other than his usual occupation, asserts a claim to the fund, the expression “some other occupation” will be construed and given its proper place in the contract. It is sufficient, for the present occasion, that the plaintiff is unable to follow his usual occupation. That fact brings his case within the contract. Under either reading, therefore, of the condition of the contract in question, the plaintiff’s case, as made by the evidence, falls within it. He has lost a limb, which is a permanent disability. The loss renders him unable to follow his usual occupation, and its loss was by reason of an accident which happened while engaged in following his usual occupation. We are of the opinion, therefore, that the case was for the jury. The judgment must be reversed, and a new trial granted, costs to abide the event. All concur.