Greenwood v. Inter-Ocean Insurance Company , 242 N.C. 745 ( 1955 )

89 S.E.2d 455 (1955) 242 N.C. 745

Adolphus Barte GREENWOOD
v.
INTER-OCEAN INSURANCE COMPANY.

No. 94.

Supreme Court of North Carolina.

October 19, 1955.

Harkins, Van Winkle, Walton & Buck, Asheville, for plaintiff, appellee.

Williams & Williams, Asheville, for defendant, appellant.

BOBBITT, Justice.

"Accident Indemnities," Section 2, Part A, quoted above, deals with "Loss of Time —Total." Under the first paragraph of said Part A, accident indemnity is payable thereunder at the rate of $200 per month, for a period not exceeding twelve months, if plaintiff, "resulting solely from bodily injuries effected directly and independently of all other causes through accidental means," is continuously and totally disabled and prevented from performing any and every duty pertaining to his business or occupation. Plaintiff alleged that the policy contained this provision. He alleged further that he had been so disabled from 26 January, 1952, on account of his knee injury.

Under the second paragraph of said Part A, if the facts are such as to entitle the insured to the total loss indemnity for the first twelve months under the provisions set out in said first paragraph, then the accident indemnity at the rate of $200 per month will be continued for an additional maximum period of 48 months if "such injuries" shall wholly and continuously disable the insured and prevent him from engaging in any occupation or employment for wage or profit. This provision will be referred to herein as the "extended total loss coverage." Plaintiff did not allege that the policy contained this provision. Nor did he allege that he was wholly and continuously disabled and prevented from engaging in any occupation or employment for wage or profit. At the close of plaintiff's evidence, by leave of court and over defendant's objection, plaintiff amended his complaint so as to allege this policy provision. In this Court, he moves to amend further by alleging that he was wholly and continuously disabled and prevented from engaging in any occupation or employment for wage or profit. Even so, the court below submitted the second issue, apparently upon the assumption that such allegation had been made.

The disability defined in the first paragraph of Part A, sufficient to require payment of the total loss indemnity for the first twelve months from the date of accident, differs materially from that defined in the second paragraph of Part A, which sets forth the conditions under which the "extended total loss coverage" is payable.

Counsel do not cite, nor have we discovered, a decision of this Court dealing with a disability provision substantially in accord with that set forth in the first paragraph of Part A. This provision relates to the insured's ability personally to perform the duties of his profession. Evidence of income when engaged on a part-time schedule at his office is relevant only as it may bear upon whether plaintiff was in fact totally disabled from performing personally "any and every duty" pertaining to his profession.

General discussions of what constitutes "total disability" may be found in 29 Am. Jur., Insurance, sec. 1161 et seq.; 45 C. J.S., Insurance, § 898; Richards on Insurance, 5th ed., secs. 237 and 238; Appleman, Insurance Law and Practice, sec. 671 et seq. The cases are legion. Annotations: 37 A.L.R. 151; 41 A.L.R. 1376; 51 A.L.R. 1048; 79 A.L.R. 857; 98 A.L.R. 788.

Suffice it to say: each policy must be construed in relation to its particular provisions and each claim must be considered in relation to the particular profession or occupation in which the insured was engaged when injured.

The policy under consideration, by its terms, indicates plainly the distinction between "Loss of Time—Partial" and "Loss of Time—Total." In the former, the disability must be such as to prevent the insured from performing one or more important duty or duties of his occupation. In the latter, the disability must be such as to prevent the insured from performing any and every duty of his occupation. Construed together, the indemnity for "Loss of Time—Total" is payable when the insured is disabled to such extent that he cannot perform any important duty of his profession.

The evidence, considered in the light most favorable to plaintiff, tends to show beyond question that plaintiff's disability on account of his knee injury prevented him from performing one or more important duty or duties of his occupation. Moreover, we think such evidence sufficient for submission to the jury on the issue as to whether he was disabled during the first twelve months from the date of the accident to such extent that he could not perform any important duty of his profession. The inference may be drawn that the plaintiff, when he went to his office during this period, simply indulged the false hope that he would recover sufficiently from his knee injury to resume his practice as a physician and surgeon; but that, after making an honest trial, he found that he was totally incapable of performing personally any important duty of his profession.

The fact that, during such times, he submitted proofs of claim, accompanied by the certificate of a doctor, to the effect that, his then disability was partial, and accepted the partial loss benefits based on such proofs of claim, is not conclusive as to plaintiff's actual and true status. All relevant evidence, including such proofs of claim, was for consideration by the jury.

It must be borne in mind that plaintiff has received either total loss or partial loss benefits for the entire period from 26 January, 1952, to 6 January, 1953. He makes no further claim for that period. His claim now is for total loss benefits commencing 6 January, 1953. The evidence was sufficient for submission to the jury, certainly in relation to the remainder of the period of twelve months from his accident on 26 January, 1952. Hence, defendant's motion for judgment of nonsuit was properly overruled.

Since there must be a new trial, for reasons stated below, we need not consider the sufficiency of plaintiff's evidence, even if predicated on sufficient allegation, for submission on the issue as to whether he comes within the "extended total loss coverage." The evidence relevant to this issue may be different upon the second trial.

In relation to such "extended total loss coverage," attention is called to the fact that this Court has considered frequently disability provisions substantially in accord with those set forth in the second paragraph of Part A. A number of such cases are cited by Winborne, J., in Ingram v. Equitable Assurance Society, 230 N.C. 10, 51 S.E.2d 903, and by Denny, J., in Drummonds v. Equitable Life Assurance Society, 241 N.C. 379, 85 S.E.2d 338. The general rule applicable is stated by Brogden, J., as follows: "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." Bulluck v. Mutual Life Insurance Co., 200 N.C. 642, 158 S.E. 185, 187. Thus, recovery has been denied to an insured who, though suffering from a permanent and serious disability, continues to work at a gainful occupation. Ford v. New York Life Insurance Co., 222 N.C. 154, 22 S.E.2d 235. Under the second paragraph of Part A, the test is whether the insured is wholly and continuously disabled to such extent that he cannot engage in any occupation or employment for wage or profit.

There is evidence that plaintiff quit his office in January, 1953, withdrawing completely from any further attempt to practice his profession, on account of his knee injury. On the other hand, there is evidence that plaintiff so withdrew from his practice on account of his heart condition. There is no evidence that the heart condition resulted in any degree from the knee injury. (It is noted that the policy here under consideration contained provisions for "Sickness Indemnities," not involved in this action, including a special provision whereby insured waived benefits for disability resulting from "any deseases (sic) of the heart and/or complications arising therefrom."

To recover on account of disability, whether that defined in the first or in the second paragraphs of Part A, the knee injury alone must have been such as to cause such disability. If such disability was caused solely by plaintiff's heart condition, or if plaintiff's heart condition was a concurring and cooperating cause, without which such disability would not have resulted, plaintiff cannot recover. Penn v. Standard Life & Accidental Insurance Co., 158 N.C. 29, 73 S.E. 99, 42 A.L.R, N.S., 593; Id., 160 N.C. 399, 76 S.E. 262, 42 L.R.A.,N.S., 597.

In the trial below the first issue was germane only as to the period of twelve months beginning 26 January, 1952. The second issue, assuming a sufficient allegation to warrant its submission at all, was germane only as to the period of "extended total loss coverage," which began, if at all, upon the expiration of the first twelve months. However, the first and second issues as submitted related to the identical period, to wit, from 26 January, 1952.

After deliberating for a time, the jury returned for further instructions, when, as shown by the record, the following occurred:

"Juror: We can't agree on whether the issues all have to be answered `yes' or all `no'?

"Court: Gentlemen, I can't tell you that.

"Juror: What I mean, do you have to answer them all one way?

"Court: Just have a seat.

"Members of the jury, the plaintiff, with reference to the first and second issues, argues and contends that as a result, and as a direct and independent result of his injury on January 26, that he has been prevented from performing any and every duty pertaining to his business or occupation as a physician or medical doctor; and that as to the second issue that he has also, by reason of the direct and independent result of his injury alleged to have occurred on January 26, 1952, been wholly and continuously prevented from engaging in any occupation or employment for wage or profit, and the burden of those two issues is upon the plaintiff to satisfy you from the evidence, and by its greater weight, and if you are so satisfied from the evidence, and by its greater weight, that by reason of his injury that he was prevented from performing any and every duty pertaining to his business, and that he was wholly and continuously prevented from engaging in any other occupation for a wage or profit, and you so find from the evidence and by its greater weight, the burden being upon the plaintiff to so establish, then the Court charges you it would be your duty to answer both issues YES. If you are not so satisfied, it would be your duty to answer the issues NO.

"As I have said, the burden is upon the plaintiff to satisfy you from the evidence and testimony in the case, and by its greater weight, that he was prevented from performing any and every duty pertaining to his business or occupation by reason of the direct and independent result of the injuries alleged to have been sustained on January 26, 1952, and, likewise, that he was prevented by the injuries from engaging as a direct and independent result of the injury from engaging in any other occupation or employment for wage or profit.

"Now, is there anything else that I can give you any additional instructions about, gentlemen?

"Juror: What we are undecided on is whether you can answer the first one one way and the next one another way?

"Court: Well—(interrupted).

"Juror: We understood that you said to answer them all `yes' or all `no.'

"Court: No, sir, I didn't say that, gentlemen. The only thing I can tell you is: that if you find from the evidence, and by its greater weight, that as a direct and independent result of the alleged injuries that the plaintiff was prevented from performing any and every duty pertaining to his business as a doctor, and that as the direct and independent result of his injury on January 26, 1952, that he was continuously and wholly prevented from engaging in any other occupation for wage or profit,—if you find those facts from the evidence and by its greater weight, the burden being on the plaintiff to so satisfy you, you would answer the first and second issue Yes, otherwise you would answer it No."

We apprehend that these instructions did not satisfactorily answer the juror's pertinent inquiry, namely, whether the jury was required to answer both the first and second issues the same way, either "yes" or "no." The difficulty may be attributed, at least in part, to the fact that these issues, as pointed out above, should have related to different and defined periods. But, in relation to the issues submitted, had the jury seen fit to answer the first issue "no," it should not have considered the second issue at all; and had the jury seen fit to answer the first issue "yes," then the second issue was for its consideration to be answered either "yes" or "no" according to its findings. The jury was not required to answer both issues the same way, either "yes" or "no," and should have been instructed as indicated.

We note again that to recover during the initial twelve months plaintiff was required to establish only that he was disabled, "from performing any and every duty pertaining to the Insured's business or occupation," as provided in the first paragraph of Part A, while recovery for the immediately following period of "extended total loss coverage" required that the plaintiff then be disabled to such extent that he could not engage "in any occupation or employment for wage or profit."

In our opinion, the confusion inherent in the issues submitted, together with the instructions given in response to the juror's inquiry, resulted in a failure to submit correctly to the jury for their determination the issues upon which plaintiff's right to recover depends. Defendant, by proper exceptive assignments of error, challenged the submission of each issue as well as the quoted instructions.

Plaintiff's motion in this Court for leave to amend his complaint is denied, without prejudice to plaintiff's right hereafter in the court below to make the same motion or other motion in respect of amendment of his pleadings. If defendant desires to amend its answer, it may move for leave to do so hereafter in the court below.

For the reasons stated, a new trial is awarded. Questions posed by other assignments of error may not arise when the cause is tried again.

New trial.