182 S.E. 106 | N.C. | 1935
Civil action to recover on two certificates of group insurance, one for $1,000, the other for $1,250, issued by defendant to plaintiff's intestate, an employee of the Gulf Refining Company, a subsidiary of the Gulf Oil Corporation.
The certificates in suit provide for payment, in the event of death, to the beneficiaries named therein, or "in the event of total and permanent disability occurring before age sixty, to the insured himself."
"Total Disability: Any employee shall be deemed to be totally disabled within the meaning of this policy if injuries, sickness, or disease continuously prevent him from performing any and every duty pertaining to his occupation."
"Permanent Total Disability: If said total disability began before age 60, and presumably will during his life prevent the employee from pursuing any occupation for wages or profit; . . . he shall be deemed to be totally and permanently disabled within the meaning of this policy."
It is further provided in said certificates that the insurance shall cease whenever the employee "leaves the service of his employer, or cancels his pay roll deduction order," unless converted into a life insurance policy according to option contained therein, which was not done in the instant case.
With respect to payment of claims, the Master Policy provides as follows: "No claim for permanent total disability incurred by an employee during his period of employment shall be paid after the termination of his employment, unless the employee gives notice of the disability to his superior in writing while in the employ of the Gulf Companies or within sixty days thereafter."
The certificates in suit were issued 13 May, 1930, when plaintiff's intestate was employed by the Gulf Refining Company as a truck driver. In May, 1931, the insured underwent an operation for appendicitis, and in August, 1931, a second operation was performed for an obstruction of the colon. A period of convalescence followed, and in December, 1931, the insured reported back for work. He was given position of service station attendant on 6 January, 1932, and worked until 31 January, 1932, when his services with the company were terminated, and the pay roll deduction order for insurance canceled, the insured being paid at the time a premium refund of sixty cents on his group insurance. He did not elect to carry his insurance thereafter.
Plaintiff's intestate later worked for the Gulf Refining Company from 22 June, 1932, to 6 July, 1932, relieving a service station attendant who was ill during this period. *667
In August, 1932, plaintiff's intestate again became too ill to work, and in the following December, the cause of his disability was diagnosed as cancer of the stomach, from which he died in January, 1933.
There is testimony that the cancer was forming for some time prior to his death. The physician who operated in August, 1931, testified that he was then "suspicious of possible malignancy," and "in the light of hindsight, I know now the vascular growth which I found at the second operation in August, 1931, was a cancer."
On 3 November, 1931, the physician wrote the agent of the Gulf Refining Company, at the agent's request, giving a full history of his patient's illness and stating, "We all feel he is the sickest individual we have ever seen survive," but adding: "At present he is rapidly gaining in weight and strength and should make a complete recovery."
This letter was offered as written notice of disability under the policies in suit.
Demurrers to the evidence or motions to nonsuit; overruled; exceptions.
From a verdict finding that the insured was "totally and permanently disabled on 31 January, 1932," and that written notice thereof was given "his employer while in the employ of the Gulf Companies, or within sixty (60) days thereafter," and judgment thereon, the defendant appeals, assigning errors. after stating the case: The evidence fails to show: (1) total and permanent disability of insured during period of employment as defined in the policies, or (2) written notice of disability to superior while the insured was in the employ of the Gulf Companies, or within sixty days thereafter. These are conditions precedent to the right of recovery under the policies in suit.
It is true, the insured's physician gave it as his opinion that on 17 October, 1931, the last time he waited upon him, "the boy was unable to do any kind of work at that time, or pursue any kind of occupation." Nevertheless, plaintiff's intestate did actually perform all the duties pertaining to his employment, at regular wages, during the month of January, 1932, until his employment ceased, and also in the following June and July. These were not trifling or minor jobs, on part-time basis, as was the case in Smith v. Equitable Assurance Society,
The case is controlled by the decisions in Hill v. Ins. Co.,
There is a natural feeling that after an insurance company has received its premiums, it ought not to be allowed to escape liability or to avoid responsibility, and the just rule is that policies will be construed strictly against the insurers and in favor of the assured. Conyard v. Ins.Co.,
The letter of plaintiff's intestate's physician written under date of 3 November, 1931, at the request of the employer's agent, could hardly be regarded as written notice of disability under the policies in suit, for the reason it was not so intended (Trust Co. v. Asheville,
Under the facts in evidence, plaintiff's intestate was not entitled to recover at the time the policies in suit were terminated. The motion to nonsuit should have been allowed.
Reversed.
