Ireland v. Mutual Life Insurance Co. of New York , 226 N.C. 349 ( 1946 )

Winborne, J.

This question is decisive of this appeal: Is the evidence, offered upon the trial below, taken in the light most favorable to plaintiff, as must be done in considering motion for judgment as in case of nonsuit, sufficient to support an affirmative answer to the issue as to whether plaintiff “has become totally and permanently disabled by bodily injury or disease, so that he is, and will be permanently, continuously and wholly prevented from performing any work for compensation, gain or profit, and from following any gainful occupation,” that is, within the express provisions of the policies upon which suit is based ? A negative answer comes from the decisions of this Court in these cases: Buckner v. Ins. Co., 172 N. C., 762, 90 S. E., 897; Thigpen v. Ins. Co., 204 N. C., 551, 168 S. E., 845; Boozer v. Assurance Society, 206 N. C., 848, 175 S. E., 175; Hill v. Ins. Co., 207 N. C., 166, 176 S. E., 269; Carter v. Ins. Co., 208 N. C., 665, 182 S. E., 106; Whiteside v. Assurance Society, 209 N. C., 536, 183 S. E., 754; Lee v. Assurance Society, 211 N. C., 182, 189 S. E., 626; Mertens v. Ins. Co., 216 N. C., 741, 6 S. E. (2d), 496; Medlin v. Ins. Co., 220 N. C., 334, 17 S. E. (2d), 463; Jenkins v. Ins. Co., 222 N. C., 83, 21 S. E. (2d), 832; Ford v. Ins. Co., 222 N. C., 154, 22 S. E. (2d), 235.

Thus in keeping with these decisions defendant’s exception to the refusal of its motion, at the close of all the evidence, for judgment as in case of nonsuit is well taken. And in view of the pronouncements so recently made by this Court in these cases, further treatment of the subject here would be unnecessarily repetitious.

It is sufficient to say that as plaintiff has agreed, so shall he be bound. Even though there is much opinion evidence as to plaintiff’s physical disability, the facts remain, as revealed by his own testimony, that through the years he has been actively engaged continuously in business transactions of various kinds in connection with the operation of his farm and that of his wife. These negative total and permanent disability within the meaning of the provisions of the policies upon which he sues. Adverting to a similarly factual situation in the Thigpen case, supra, Brogden, J., aptly said: “The law is designed to be a practical science, and it would seem manifest that a plain, everyday fact, uncon-troverted and established, ought not to be overthrown by the vagaries of opinion or by scientific speculation.”

The present case is distinguishable in factual situation from those in this line of cases: Lee v. Ins. Co., 188 N. C., 538, 125 S. E., 186; Brinson v. Ins. Co., 195 N. C., 332, 142 S. E., 1; Bulluck v. Ins. Co., 200 N. C., 642, 158 S. E., 185; Smith v. Assurance Society, 205 N. C., 387, 171 S. E., 346; Misskelley v. Ins. Co., 205 N. C., 496, 171 S. E., 862; Guy v. Ins. Co., 206 N. C., 118, 172 S. E., 885; Leonard v. Ins. Co., 209 N. C., 523, 183 S. E., 723; S. c., 212 N. C., 151, 193 S. E., 166; Fore v. Assurance Society, 209 N. C., 548, 184 S. E., 1; Blankenship v. Assurance Society, 210 N. C., 471, 187 S. E., 59.

The judgment below is

Reversed.