179 S.E. 665 | N.C. | 1935
This is a civil action to recover disability benefits on five policies of insurance issued to the plaintiff by the defendant on 21 October, 1925, all of which policies contained, inter alia, the following provisions: *215
"If, before default in payment of premium, the insured becomes totally and permanently disabled by bodily injuries or disease, and is thereby prevented from performing any work or conducting any business for compensation or profit, the following benefits will be available: When such disability occurs before age sixty a waiver of the payment of premiums falling due during such disability, and an income of ten dollars a month for each one thousand dollars of the sum insured payable to the life owner each month in advance during such disability.
"If before attaining the age of sixty years the insured becomes totally disabled by bodily injuries or disease and is thereby prevented from performing any work or conducting any business for compensation or profit for a period of ninety consecutive days, then, if satisfactory evidence has not been previously furnished that such disability is permanent, such disability shall be presumed to be permanent. In such a case, benefits shall accrue from the expiration of the said ninety days, but not from a date more than six months prior to the date that evidence of such disability satisfactory to the company is received at its home office. No benefit shall accrue prior to the expiration of said ninety days unless during that period evidence satisfactory to the company is received at its home office while the insured is living that the total disability will be permanent, in which event benefits will accrue from the commencement of disability."
The defendant admits that all the premiums have been paid on said policies, and that the same were in full force and effect at the time of the institution of this action.
The issues submitted and answers made thereto were as follows:
"1. Did the plaintiff Ora J. Bradshaw, on 30 November, 1931, become totally and permanently disabled, caused by bodily injury, so that he was prevented thereby from performing any work or conducting any business for compensation or profit, as alleged in the complaint? Answer: `Yes.'
"2. If so, did such total disability continue for a period of ninety days? Answer: `Yes.'
"3. If so, what benefits in money is plaintiff entitled to recover of the defendant under the terms of the five life insurance policies referred to in the complaint? Answer: `Fifty dollars, beginning 1 December, 1931, up to and including 1 August, 1933, with interest on each month from date due.' (Answered by the court by consent.)
"4. What amount in premiums, if any, is plaintiff entitled to recover, paid to defendant since 30 November, 1931? Answer: `$195.85, with interest from 18 November, 1932.' (Answered by the court by consent.)"
From judgment for the plaintiff in accord with the verdict, the defendant appealed to the Supreme Court, assigning errors. *216 The appellant abandoned in his brief the exceptions taken to the admission and exclusion of evidence during the course of the trial.
We have examined those portions of the charge relating to the first issue and assigned as error and are of the opinion that when they are construed contextually with the charge as a whole that they are free from reversible error.
The appellant assails in his brief the use by the court of the phrase "unable to earn a living himself" as being too all-inclusive, and by way of argument says that one may be unable to earn a living for many reasons not in contemplation of the parties at the time the contract of insurance was entered into, such, for instance, as the depression, drought, and other unavoidable calamities. Such inability to earn a living would, however, not be due to "bodily injury or disease," and the charge nowhere disassociates the inability "to earn a living himself" from "bodily injury or disease." There is not sufficient difference to constitute prejudicial error between being "prevented from performing any work or conducting any business for compensation or profit" and being "unable to earn a living himself," when the disability in both instances is due to "bodily injury or disease."
His Honor, after giving a number of illustrations and reading excerpts from some of the opinions of this Court, closed his charge upon the first issue as follows: "But, in conclusion, upon this first issue, I will again say to you that the burden is upon Mr. Bradshaw, and by that I mean to say that in order for you to answer this issue `Yes,' in his favor, he must offer evidence which satisfies you by its greater weight that since 30 November, 1931, he has not only been permanently disabled, but that he has been totally disabled, so that he has been thereby prevented from performing work for compensation or profit, or conducting any business for compensation or profit. And if he has done so, remembering the rule which I have laid down as to what constitutes permanent and total disability, it would be your duty to answer the first issue `Yes.' If he has failed to do so, it would be your duty to answer it `No.'" This closing clause of the charge is a clear and correct statement of the law, and is not in conflict with what his Honor formerly charged the jury, but is rather an explanation and resume of what he had told them.
Many of these assignments of error to portions of the charge, which it is urged are in conflict with other portions thereof, are to statements of contentions, and the court was not given the opportunity to correct such *217
statements by having its attention called thereto at the time they were made, as required by our practice. Hood, Comr. of Banks, v. Cobb,
The assignment as error that the court charged the jury upon the second issue that if they were satisfied by the greater weight of the evidence "that his (plaintiff's) disability has continued for a period of ninety days after 30 November, 1931, it would be your duty to answer the second issue `Yes,'" instead of using the words of the policy "for a period of ninety consecutive days," is untenable, since the words "period of" connote consecutiveness; and this would be so for the further reason that the permanency of the plaintiff's disability is admitted by the defendant, and no question is raised throughout the record as to its duration. The extent of the disability, whether total or not, and not the length of time of its existence, was the question involved.
The defendant's principal assignments of error are based upon its motions for judgment as of nonsuit and requests for peremptory instructions upon the first and second issues. The rulings of the court upon these motions and requests raise the simple question as to whether there was sufficient evidence to be submitted to the jury upon the first and second issues. In the recent case of Guy v. Insurance Co.,
The class of policies to which those in suit belong are designed to provide a substitute for earning when the insured is deprived of capacity to earn by bodily injury or disease, and when the vital issue as to whether the insured has been so deprived of such capacity is raised the answer can be ascertained only by the "ancient mode of trial by jury." This case presents little more than an issue of fact upon sharply conflicting evidence, and this issue has been found in favor of the plaintiff under a fair and impartial charge, free from reversible error. Both in theory and in principle the cases of Guy v. Ins. Co., supra, and Gennett v. Ins. Co.,
The judgment is
Affirmed. *218