Gossett v. Metropolitan Life Insurance
179 S.E. 438
N.C.
1935
Check Treatment
OlaeksoN, J.

At the close of plaintiff’s evidence and at the close of all the evidence the defendant made motions for judgment as in case of nonsuit. C. S., 567. The court below overruled these motions, and in this we can see no error.

On motion to dismiss or judgment of nonsuit the evidence is to be taken in the light most favorable to the plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom. An exception to a motion to dismiss in a civil action taken after the close of the plaintiff’s evidence, and renewed by defendant after the introduction of his own evidence, does not confine the appeal to the plaintiff’s evidence alone, and a judgment will be sustained under the second exception if there is any evidence on the whole record of the defendant’s liability. We think the evidence plenary to have been submitted to the jury.

In Bulluck v. Ins. Co., 200 N. C., 642 (646), the following law is well settled in this State: “The reasoning of the opinions seems to indicate that engaging in a gainful occupation is the ability of the insured to work with reasonable continuity in his usual occupation, or in such an occupation as he is qualified physically and mentally, under all the circumstances, to perform substantially the reasonable and essential duties incident thereto. Hence, the ability to do odd jobs of comparatively trifling nature does not preclude recovery. Furthermore, our decisions and the decisions of courts generally have established the principle that the jury, under proper instructions from the trial judge, must determine whether the insured has suffered such total disability as to render it 'impossible to follow a gainful occupation.’ ” Green v. Casualty Co., 203 N. C., 767; Smith v. Assurance Society, 205 N. C., 387; Misskelley v. Ins. Co., 205 N. C., 496; Baker v. Ins. Co., 206 N. C., 106.

The language in the policies in this action are practically all the same: “Has become totally and permanently disabled so as to be unable at any time to perform any work or engage in any business for compensation or profit.”

We will consider the questions involved, as set forth in defendant’s brief. First: “Is the plaintiff entitled to recover total and permanent disability benefits under a policy of insurance where the evidence shows *158 that he has been ill, but no physician testifies, and no evidence of ‘permanency’ is introduced ?”

We do not think this question, as a whole, is borne out by the facts. Plaintiff testified, unobjeeted to, to the effect that since he left the defendant in February, 1932, he has not seen a good day. He has not been able to do any work or engage in any business for compensation or profit. He is in a nervous, weak, and run-down condition. He has not been able to perform any work. In this jurisdiction it has been held that to recover on policies, as in this ease, it is not necessary that a physician must testify to total and permanent disability.

In Bulluck v. Insurance Co., supra, at pages 646-7, speaking to the subject: “The ability of a party to perform physical or mental labor is not a question of such exclusively technical significance as to permit expert testimony to be given conclusive effect. Indeed, the identical question arose in Fields v. Assurance Co., supra (195 N. C., 262), in which the physician had testified that the plaintiff was not in his opinion permanently disabled. Moreover, there was a conflict between the testimony of physicians and the plaintiff with respect to permanent disability, and it has been the uniform policy of the law of this State, for many years, to submit conflicting evidence to the jury upon the theory that in the last analysis the jury is the weigh-master of the evidence.” Miss kelley v. Ins. Co., supra; Guy v. Ins. Co., 207 N. C., 278.

Second: “Is the notice of temporary disability furnished to the company under one policy to be considered a sufficient compliance with the condition in a different policy requiring proof of total and permanent disability ?”

We do not think this question is borne out by the entire record. In the group' policy, the correspondence between the litigants showed that plaintiff was claiming temporary disability, and also permanent disability. Defendant was denying permanent disability. As to the policies, plaintiff asked the general agent of defendant company for forms on which to make the proofs of his disability. This was refused by Mr. Barron, defendant’s general agent, on the ground that he was not entitled to the benefits under his policies. The defendant denied liability on the ground that plaintiff was not totally and permanently disabled, and also that plaintiff had not furnished due proof.

In Guy v. Ins. Co., supra, at p. 279, it is said: “It is established by the decisions in this jurisdiction that a provision in an insurance policy requiring proof of loss, disability, or death is waived by the company’s denial of liability, or refusal to pay, upon grounds other than failure to furnish such proof. Misskelley v. Ins. Co., supra (205 N. C., 496).”

We think that the demand by plaintiff on the general agent of defendant company, and his refusal to furnish forms for plaintiff to make *159 proof of disability, on the ground that plaintiff was not entitled to benefits under the policies — under the facts and circumstances of this case, was properly left to the jury under the issues. Paramore v. Ins. Association, 207 N. C., 300 (304); Colson v. Assurance Co., 207 N. C., 581; C. S., 6479, subsec. (6).

Third: “Did his Honor, the judge of the general county court, err in his ruling on the admission of evidence, and in propounding to the jury the law applicable to the case?”

The defendant contends that the following testimony of a lay witness, Jemison, was incompetent: “I do not think that he is a well man, and certainly do not think he would be 'able to do any kind of physical work. From general observation, that is my opinion.”

We do not think this exception and assignment of error can be sus-, tained. The authorities are to the contrary. Gasque v. City of Asheville, 207 N. C., 821. The case of Potts v. Ins. Co., 206 N. C., 257, is distinguishable. Under Group Policy No. 54, it was contended by defendant that plaintiff accepted a check in full payment. There are no pleadings or issues to that effect, and we do not think, from the theory on which the case was tried, that defendant’s position is tenable. The issues submitted to the jury as to the furnishing of due proof of disabilities under the policies were all answered by the jury in favor of plaintiff. It is well settled that if the verdict is correct on either one of the aspects, it will support the judgment. From the view we take of the law in this case, we see no error in the refusal of the court to grant defendant’s request for special instructions.

Fourth: “Is the sum awarded by the jury in excess of the amount provided by the policies of insurance sued upon?” We think so.

Exceptions and assignments of error made by defendant present the question as to the correctness of the jury’s answers to issues 8, 9, 10, and 11. There is no error in the answers to all the other issues except these issues. As to these issues, there must be a new trial.

“In Lumber Co. v. Branch, 158 N. C., at p. 253, the law is thus stated: 'It is settled beyond controversy that it is entirely discretionary with the court, Superior or Supreme,' whether it will grant a partial new trial. It will generally do so when the error or reason for the new trial is confined to one issue, which is entirely separable from the others, and it is perfectly clear that there is no danger of complication. Benton v. Collins, 125 N. C., 83; Rowe v. Lumber Co., 133 N. C., 433.’ Whedbee v. Ruffin, 191 N. C., at p. 259.” In re Will of Bergeron, 196 N. C., 649 (652); Lumber Co. v. Power Co., 206 N. C., 515 (522).

We find no error on issues 1, 2, 3, 4, 5, 6, and 7, and the judgment affirmed on these issues. We find error on issues 8, 9, 10, and 11, and judgment reversed on these issues.