Brooks v. Washington National Insurance

189 S.E. 787, 211 N.C. 274, 1937 N.C. LEXIS 59

• Court: Supreme Court of North Carolina
• Decided: February 24, 1937
• Status: Published

Opinion

CONNOR, J.

At the trial of this action the court instructed the jury with respect to the third issue as follows:

“The court charges you that if you find the facts to be as the evidence tends to show — that is, the evidence of the plaintiff and of the defendant — you will answer the third issue ‘$140.SOI ”

The defendant excepted to this instruction and on its appeal to this Court assigns same as error. The assignment of error is sustained. The defendant is entitled to a new trial.

There was evidence tending to show that the disease from which the plaintiff suffered from 28 July, 1935, to 28 December, 1935, and which resulted in her disability, was and is chronic. If the jury shall so find, under the provisions of the policy and under proper instructions by the court, plaintiff is entitled to recover of the defendant a monthly indemnity of $30.00 for only two months, less the amount due the defendant as premiums on the policy.

It is needless to discuss other assignments of error on this appeal, or to decide the questions presented by said assignments. It is not likely that these questions will arise upon another trial.

The contentions of the parties arising on the evidence will doubtless be presented to the jury'at the new trial, either by appropriate issues or by full instructions by the court on the issue involving the amount which plaintiff is entitled to recover of the defendant.

The defendant is entitled to a new trial. It is so ordered.

New trial.