Whitman v. . Insurance Co. , 216 N.C. 742 ( 1940 )

Civil action for recovery of benefits under disability provision in policy of life insurance.

On 15 September, 1925, defendant issued a policy of insurance upon the life of plaintiff, Robah James Whitman, for two thousand dollars, in which his wife, Nellie Viola Whitman, was named as beneficiary. This policy contained a provision for payment of benefits for total and permanent disability as therein defined, and for waiver of premiums during such disability, "upon receipt and approval of proof satisfactory to the company, while this policy is in full force and effect . . ." Evidence for plaintiff tends to show that the premium due 15 September, 1936, was not paid, nor was any premium thereafter paid; that plaintiff filed with defendant proof of disability in January, 1939, and that while he was disabled prior to 15 September, 1936, he thought it temporary, and he did not then know, and did not discover until December, 1938, that his disability was total and permanent.

At the close of plaintiff's evidence the court granted motion for judgment as in case of nonsuit. Plaintiff appeals therefrom to Supreme Court and assigns error. The evidence on this appeal fails to show that plaintiff filed proof of total and permanent disability while the policy of insurance was effective, and lacks sufficient excuse for such failure. The judgment as of nonsuit must be

Affirmed.