ClaeKSON, J.
The defendant introduced no evidence and at the close of plaintiff’s evidence made a motion in the court below for judgment as in case of nonsuit. The court below overruled the motion, and in this we can see no error. The evidence which makes for plaintiff’s claim, or tends to support his cause of action, is to be taken in its most favorable light for the plaintiff, and he is entitled to the benefit of every reasonable intendent upon the evidence, and every reasonable inference to be drawn therefrom.
In
Bulluck v. Ins. Co.,
200 N. C., 642,
Brogden, J.,
after citing many authorities, says, at p. 646: “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. Furthermore, our decisions, and the decisions of courts generally, have established the principle that the jury, under proper instructions from the trial judge, must determine whether the insured has suffered such total disability as to render it ‘impossible to follow a gainful occupation.’ ”
The court below, in its charge, quoted the above excerpt from the
JBulluch case, supra,
which has been many times approved by this Court.
Misskelley v. Ins. Co.,
205 N. C., 496 (506-7);
Smith v. Assurance Society,
205 N. C., 387;
Fore v. Assurance Society,
209 N. C., 548;
Blankenship v. Assurance Society,
210 N. C., 471.
This case was before this
Court
— Leonard
v. Ins. Co.,
209 N. C., 523.
Schenck, J.,
writing the opinion for the Court, said, at p. 524: “The plaintiff introduced his evidence and at the conclusion thereof the defendant moved to dismiss the action and for judgment as of nonsuit, which motion was allowed, and from judgment entered accordingly the plaintiff appealed, assigning errors. . . . The sole question presented by this appeal is whether the plaintiff’s evidence was sufficient to be submitted to the jury upon the question of his permanent total disability as defined in the policy.”
The facts are therein set forth similar to those in the present case. This Court reversed the judgment of nonsuit, citing the
Bulluclc case, supra,
and other cases.
We think it was competent to admit opinion evidence of nonexpert witnesses to testify as to the ability of plaintiff to engage in work.
In
Keller v. Furniture Co.,
199 N. C., 413 (417), it is said: “The testimony of these witnesses did not involve a question of science or a conclusion to be drawn from a hypothetical statement of facts; it was elicited as a matter within their personal knowledge, experience, and observation. The exception to the general rule that witnesses cannot express an opinion is not confined to the evidence of experts testifying on subjects requiring special knowledge, skill, or learning; it includes the evidence of common observers testifying to the results of their observation.
Britt v. R. R.,
148 N. C., 37;
Marshall v. Telephone Co.,
181 N. C., 292.”
Bulluck v. Ins. Co., supra,
pp. 646-7.
On the facts and circumstances of this case, we do not think the evidence complained of by defendant is of such a nature that impinged the rule that it was the exact question for-the jury to determine, at least it was not prejudicial, as there was other evidence of like effect to which no objection was made by defendant.
The evidence of plaintiff which defendant objected to, as to the nearsightedness of plaintiff, we think was competent under the facts and
circumstances of tbe case. Tbis was admitted by tbe court, for tbe purpose of showing that tbe plaintiff could not witbin a reasonable time equip bimself to be a bookkeeper, conduct a store, or do anything else that required good eyesight; that tbe fact that tbe plaintiff was nearsighted was undoubtedly in tbe contemplation of tbe parties at tbe time tbe policy sued on was executed and delivered. It was wholly unnecessary to refer to tbe near-sightedness of tbe plaintiff in bis proof of claim, in bis specifications of disability, or anywhere else except in bis evidence. He was not required to allege tbis, since bis near-sightedness was not relied upon as tbe cause of bis disability, but merely to show that be could not 'equip bimself to follow some other suitable occupation. Tbe near-sightedness of tbe plaintiff did not tend to excite sympathy or awaken prejudice. A casual look at tbe plaintiff, no doubt, at tbe time tbe policy was issued, or at tbe time of tbe trial, would disclose tbe fact that be was near-sighted.
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ClaeKSON, J.
The defendant introduced no evidence and at the close of plaintiff’s evidence made a motion in the court below for judgment as in case of nonsuit. The court below overruled the motion, and in this we can see no error. The evidence which makes for plaintiff’s claim, or tends to support his cause of action, is to be taken in its most favorable light for the plaintiff, and he is entitled to the benefit of every reasonable intendent upon the evidence, and every reasonable inference to be drawn therefrom.
In
Bulluck v. Ins. Co.,
200 N. C., 642,
Brogden, J.,
after citing many authorities, says, at p. 646: “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. Furthermore, our decisions, and the decisions of courts generally, have established the principle that the jury, under proper instructions from the trial judge, must determine whether the insured has suffered such total disability as to render it ‘impossible to follow a gainful occupation.’ ”
The court below, in its charge, quoted the above excerpt from the
JBulluch case, supra,
which has been many times approved by this Court.
Misskelley v. Ins. Co.,
205 N. C., 496 (506-7);
Smith v. Assurance Society,
205 N. C., 387;
Fore v. Assurance Society,
209 N. C., 548;
Blankenship v. Assurance Society,
210 N. C., 471.
This case was before this
Court
— Leonard
v. Ins. Co.,
209 N. C., 523.
Schenck, J.,
writing the opinion for the Court, said, at p. 524: “The plaintiff introduced his evidence and at the conclusion thereof the defendant moved to dismiss the action and for judgment as of nonsuit, which motion was allowed, and from judgment entered accordingly the plaintiff appealed, assigning errors. . . . The sole question presented by this appeal is whether the plaintiff’s evidence was sufficient to be submitted to the jury upon the question of his permanent total disability as defined in the policy.”
The facts are therein set forth similar to those in the present case. This Court reversed the judgment of nonsuit, citing the
Bulluclc case, supra,
and other cases.
We think it was competent to admit opinion evidence of nonexpert witnesses to testify as to the ability of plaintiff to engage in work.
In
Keller v. Furniture Co.,
199 N. C., 413 (417), it is said: “The testimony of these witnesses did not involve a question of science or a conclusion to be drawn from a hypothetical statement of facts; it was elicited as a matter within their personal knowledge, experience, and observation. The exception to the general rule that witnesses cannot express an opinion is not confined to the evidence of experts testifying on subjects requiring special knowledge, skill, or learning; it includes the evidence of common observers testifying to the results of their observation.
Britt v. R. R.,
148 N. C., 37;
Marshall v. Telephone Co.,
181 N. C., 292.”
Bulluck v. Ins. Co., supra,
pp. 646-7.
On the facts and circumstances of this case, we do not think the evidence complained of by defendant is of such a nature that impinged the rule that it was the exact question for-the jury to determine, at least it was not prejudicial, as there was other evidence of like effect to which no objection was made by defendant.
The evidence of plaintiff which defendant objected to, as to the nearsightedness of plaintiff, we think was competent under the facts and
circumstances of tbe case. Tbis was admitted by tbe court, for tbe purpose of showing that tbe plaintiff could not witbin a reasonable time equip bimself to be a bookkeeper, conduct a store, or do anything else that required good eyesight; that tbe fact that tbe plaintiff was nearsighted was undoubtedly in tbe contemplation of tbe parties at tbe time tbe policy sued on was executed and delivered. It was wholly unnecessary to refer to tbe near-sightedness of tbe plaintiff in bis proof of claim, in bis specifications of disability, or anywhere else except in bis evidence. He was not required to allege tbis, since bis near-sightedness was not relied upon as tbe cause of bis disability, but merely to show that be could not 'equip bimself to follow some other suitable occupation. Tbe near-sightedness of tbe plaintiff did not tend to excite sympathy or awaken prejudice. A casual look at tbe plaintiff, no doubt, at tbe time tbe policy was issued, or at tbe time of tbe trial, would disclose tbe fact that be was near-sighted.
Tbe court charged with care tbe law applicable to tbe facts, and fully complied with C. S., 564. There appears in tbe record tbe following: “(By tbe court) Is there any further instruction that you gentlemen desire on any aspect of tbe case? . Mr. Marvin Robbins, one of tbe jurors, replied as follows: ‘We understood in your charge that if in our opinion the plaintiff was not able to carry on tbe farm duties which be bad been accustomed to carry on that be would be considered disabled, but that in tbe last analysis we were to interpret tbis contract as we saw it. Is that correct?’ (By tbe court) 'Well, substantially.’” Tbe defendant contends that tbis was error, but tbe court below went further, and charged tbe jury correctly as follows: “I instructed you, I think, that if you should be satisfied from tbe evidence, and by its greater weight, that tbe plaintiff bad become disabled to such an extent that be could not carry on bis farming pursuit with reasonable continuity, performing tbe usual and ordinary duties incident thereto, or if you should not so find, but should find that tbe plaintiff is disabled so that be could not engage in some similar work, or some work for which be was physically and mentally qualified under all tbe circumstances, and pursue it with reasonable continuity, earning for bimself wages, profit, or compensation bearing some reasonable proportion to tbe earnings be earned in bis former occupation, that would constitute a total disability witbin tbe meaning of tbe policy and witbin tbe meaning of tbe law of tbe State; that tbe mere fact that tbe plaintiff could perform some odd jobs of a trifling or inconsequential nature, either in tbe occupation of farming or some other occupation for which be was qualified mentally and physically, would not preclude a recovery. Does that make any clearer tbe statements of law applicable? . . . Tbe only question involved in tbis action is whether or not tbe plaintiff Avas totally disabled, perma
nently and totally disabled, within the period from 25 June, 1934, to the trial of this action, in the amount involved, which I told you yesterday under the stipulation between the parties is the benefit provided for, or $30.00 per month, and the premiums which have been paid by the plaintiff on the policy from the period beginning on 25 June, 1934, to the present time.”
On the whole trial, we see no prejudicial or reversible error.
No error.