The opinion
DIETRICH, Circuit Judge
(concurring). The fact that during the major part of the period in question appellee was receiving a substantial salary is material, but not conclusive. Aside from the consideration that the testimony tended to show that the employer was moved by sentiment and sympathy, fairly construed, the policy is to be understood as meaning not present ability in an absolute sense, but a capacity that may be legitimately exercised; that is, without serious peril to the life or health of the insured. That appellee was afflicted with active tuberculosis is admitted, and in the medical profession the view seems to prevail that at that stage hope of curing, or even staying, the progress of the malady, is largely conditioned upon complete rest. Had appellee put aside concern for the immediate necessities of his family, and, yielding to the advice of a conservative physician, wholly refrained from work, it may be doubted whether any question would have been raised of his right to receive the insurance. But manifestly his “ability” in a legal sense would be the same in one ease as in the other.
Upon the proposition that the policy is to be liberally construed in favor of the insured, I express no opinion.