New York Life Ins. v. Dumler

*367 Smith, C. J. The judgment of the former suit on this policy in the federal court, holding the policy to be in effect on the 23d day of January, 1922, and that the appellee was then totally disabled, and thereby unable to engage “in any occupation whatsoever for remuneration or profit,” is res judicata here. See (C. C. A.) 282 F. 969. If, therefore, from January 23, 1922, to and including the 23d day of January, 1923, the appellee was continuously unable to engage in such an occupation, he was entitled to recover here; and, on the evidence, that question was for the determination of the jury. It is true that a witness for the appellant testified that the appellee began work on January 6, 1923, but that fact was denied by the appellee, who testified that he did not begin work until the 1st day of February, 1923, and that his physical condi *368 tion from January 23,1922, to and including January 23, 1923, was such as to make it unsafe for him to engage in any sort of work, the truth of which was for the determination of the jury. Affirmed.