Thigpen v. Jefferson Standard Life Insurance
168 S.E. 845
N.C.
1933
Check Treatment
BrogdeN, J.

If an insured receives $40.00 per month for services as court crier, is be entitled to recover upon an insurance policy providing disability in the event “tbat be has been wholly and continuously disabled by bodily injuries or disease other than mental, and will be permanently, continuously, and wholly prevented thereby from pursuing any occupation whatsoever for remuneration or profit?” Stripping tbe proposition to tbe bone, does tbe receipt of $40.00 per month for services constitute an occupation “for remuneration or profit?”

There is abundant evidence tbat the insured, a farmer, suffered a stroke of paralysis in 1929, and as a result thereof both bis body and *555 mind were seriously impaired to such, an extent that he was wholly unable to attend to his farm or to perform any physical labor whatsoever. Although there was a sharp conflict in the evidence, notwithstanding upon a judgment of nonsuit, the evidence for plaintiff must be construed in its most favorable light.

The interpretation of the meaning of the words in the policy or words of like import has produced a wide divergence of opinion among text-writers and courts of last resort. Similar language was construed by the Supreme Court of Tennessee in Pacific Mutual Life Insurance Company v. McCrary, 32 S. W. (2d), 1042. The Court said: “The phrase Total disability’ has a well understood meaning in the law of insurance. It does not mean a state of absolute helplessness. The decisions, almost without conflict, define that condition as an inability to do the material acts necessary to the prosecution of insured’s business or occupation (and substantially all the material acts) in (substantially) his usual or customary manner. Cases so holding are too numerous to be set out.” See, also, Metropolitan Life Insurance Co. v. Lambert, 128 Southern, 750. The logic of these decisions is that such contracts undertake to insure the usual and customary occupation of the policyholder, or, at least, that the insured shall at all times be reasonably qualified physically and mentally to perform the material duties of his present occupation. Courts adopting a different view proceed upon the theory that contracts are made by the parties and not by the judges, and that if the words creating or eliminating liability are clear, plain, and unambiguous, the contract must be enforced according to its terms.

Notwithstanding the views of courts in other jurisdictions or the power and persuasiveness of the reasoning, this Court has spoken upon this type of contract. Thus, a farmer procured a policy, providing disability benefits in language practically identical with that contained in the policy now under consideration. See Lee v. Ins. Co., 188 N. C., 538, 125 S. E., 186. The trial judge charged the jury as follows: “Now, you will want to know what is meant by the language in the contract ‘wholly incapacitated and thereby permanently and continuously prevented from engaging in any avocation whatsoever for remuneration or profit’ It does not mean merely that this disability may incapacitate him from pursuing his usual avocation, from working on his farm with his hands, but that it must incapacitate him from engaging in any avocation for remuneration or profit. . . . Our courts.hold that the act shall be in force as it reads and that the insured cannot recover because totally disabled for his own trade or business, if he retains health, strength and physical ability sufficient for the pursuance of other avocations by which he might engage for profit or remuneration.” The Lee case was submitted to the jury, but it is to be noted that there was *556 no evidence in the record that the insured actually received money for performing the acts described in the evidence. See, also, Buckner v. Ins. Co., 172 N. C., 762, 90 S. E., 897; Brinson v. Ins. Co., 195 N. C., 332, 142 S. E., 1; Metts v. Ins. Co., 198 N. C., 197, 151 S. E., 195; Bulluck v. Ins. Co., 200 N. C., 642, 158 S. E., 185. The interpretation adopted by this Court is supported by the following declaration in 6 Cooley’s Briefs on Insurance, page 5548: “The provision may limit total disability to the inability to carry on any and all kinds of business. Under such a clause the insured must be unable to perform not only the duties of his usual occupation, but the duties of any other occupation.” See Hurley v. Bankers Life Co., 37 A. L. R., p. 146, and Annotation; Metropolitan Life Ins. Co. v. Bovella, 51 A. L. R., 1048; Mo. State Life Ins. Co. v. Snow, 47 S. W., 600; Metropolitan Life Ins. Co. v. Wann, 28 S. W. (2d), 196; Du, Rant v. Ætna Life Ins. Co., 164 S. E., 881.

The ultimate question is whether the infirmities and disabilities of the insured wholly prevented him “from pursuing any occupation whatsoever, for remuneration or profit.” Must such a question be submitted to a jury, or upon admitted facts, is it a question of law for the court? Ordinarily, such questions must be submitted to a jury, but in the case at bar it is admitted that from January until June, a few days prior to his death, the insured received $40.00 per month as compensation for his services as court crier for the county court of Pitt County. It is true that physicians and many other prominent citizens of the community testified that the insured was neither physically nor mentally capable of discharging such duties. Nevertheless it is beyond question that the services of the court crier were satisfactory to the public authorities, because they actually paid him his monthly stipend of $40.00. The law is designed to be a practical science, and it would seem manifest that a plain, everyday fact, uncontroverted and established, ought not to be overthrown by the vagaries of opinion or by scientific speculation.

A somewhat similar situation developed in the case of Hickman v. Life Ins. Co., 164 S. E., 878. The physician testified that the plaintiff had high blood pressure, a chronic kidney condition, and a nervousness attributable to high blood pressure. Furthermore, she had pellagra and myocarditis. The physician also testified that she was totally disabled. However, the evidence disclosed that the insured continued to work in the mill intermittently for several years thereafter. The South Carolina Court, referring to the testimony of the physician, said: “Exactly what he meant by that expression is not clear. The Court will assume, in the face of certain physical facts, that he did not intend to imply that she was reduced to a state of utter helplessness; he clearly had in mind some less strict standard of total disability. If he meant, however, the *557 language used to have the significance given to - tbe expression 'total permanent disability’ by tbis Court in its construction of that term as used in insurance contracts of this kind, then the admitted fact that plaintiff continued to do her customary work in the usual manner, though perhaps intermittently, for several years thereafter, shows his statement to be absolutely erroneous. In other words, in the face of this fact, the statement of the witness was a mere assertion or expression of opinion of no probative value, and could not create an issue of fact as to plaintiff’s total disability.”

Upon a consideration of the entire record, the Court is of the opinion that the trial judge ruled correctly.

Affirmed.