ClaeKSON, J.
The defendant, at the close of plaintiff’s evidence and at the close of all the evidence, made motions for judgment as in case of nonsuit. C. S., 567. The court below overruled the motions and in this we can see no error.
In
Rhyne v. Insurance Co.,
196 N. C., 717,
Stacey, C. J.,
speaking for a unanimous Court, citing numerous authorities, said, at p. 718: “It is considered by a majority of the courts that a stipulation in a contract of insurance requiring the assured, after suffering injury or illness, to perform some act, such as furnishing to the company proof of the injury or disability within a specified time, ordinarily does not include cases where strict performance is prevented by total incapacity of the assured to act in the matter, resulting from no fault of his own, and that performance within a reasonable time, either by the assured after regaining his senses or by his representative after discovering the policy, will suffice. . . . (p. 719).' But we are content to place our decision on the broad ground that, notwithstanding the liberal meaning of the words used, unless clearly negatived, a stipulation in an insurance
policy requiring notice, should be read with an exception reasonably saving the rights of the assured from forfeiture when, due to no fault of his own, he is totally incapacitated from acting in the matter. That which cannot fairly be said to have been in the minds of the parties, at the time of the making of the contract, should be held as excluded from its terms.” A petition to rehear the Rhyne action was denied 31 May, 1929. See
Rhyne v. Jefferson Standard Life Ins. Co., ante,
419.
In Vol. 2, C. S., under Insurance, subchap. 5, accident and health insurance, C. S., 6479, dealing with standard provisions in policy under subsec. 5, is the following:
“Failure to give notice within the time pro<-vided in this policy shall not invalidate any claim, if it shall he shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible.”
(Italics ours.)
It will be noted that under the standard provisions in policies, where time limit is fixed, yet the General Assembly realizing that a hard and fast rule should not always be applied, put in the above provision to meet varying contingencies that might arise. Although the above provision was not cited to this Court, in the case of
Mewborn v. Assurance Corporation,
198 N. C., at p. 158, yet this Court held: “The expression Immediate written notice,’ as used in the policy, we apprehend, was intended to impose upon the plaintiff the exercise of reasonable diligence in giving the required notice, which, under the apparent weight of authority, should be measured by his ability and opportunity to act in the premises.
Carey v. Farmers, etc., Ins. Co.,
27 Ore., 146, 40 Pac., 91;
Rhyne v. Ins. Co.,
196 N. C., 717, 147 S. E., 6.” Under C. S., 6479,
supra,
latter part subsec. 4, we find: “If Form (A) or Form (C) is used the insurer may at its option add thereto the following sentence: ‘In event of accidental death immediate notice thereof must be given to the insurer.’ ”
The defendant contends that under the policy contract sued on filing of proofs of disability was a condition precedent to the attaching of liability.
We
cannot so hold. The
Rhyne case, supra,
was thoroughly considered by this Court, and we see no reason to change our opinion. There is no question made, and it is admitted that plaintiff’s intestate paid all the premiums demanded by defendant for disability benefits to plaintiff’s intestate when “wholly and continuously disabled by bodily injuries or disease other than mental and will be permanently, continuously and wholly prevented thereby from pursuing any occupation whatsoever for remuneration or profit,” etc.
Plaintiff’s intestate under the provisions of the policy was clearly entitled to be paid from the time he was “wholly and continuously disabled,” etc., but defendant contends that the policy contract, although the premiums have been paid, for the disability, as found by the jury,
occurred 1 April, 1927, that there is a condition precedent that makes the filing of proofs necessary before liability attaches. The defendant was paid for the disability benefits and there was disability commencing 1 April, 1927, and continued. The defendant’s contention, under the facts of this case, is. too technical. If we should so hold, the policy contract would be as it were a body without a heart.
With the law settled.in this jurisdiction, as above stated, what was the evidence? The battle waged in the court below was over these issues. We set them forth with the answers by the jury: “(1) Did Mey-nardie Nelson, the insured, become wholly and continuously disabled by disease, other than mental, and was he permanently, continuously and wholly prevented thereby from pursuing any occupation whatsoever for remuneration or profit, as alleged in the complaint? Answer: Yes. (2) If so, from what date? Answer: 1 April, 1927. (3) If he became so disabled prior to 17 October, 1928, was he continuously so insane that he was incapable of, and unable to furnish proof of such disability, as required by the terms of the policy, or to procure some one to do it for him? Answer: Yes. (4) If so, from what date? Answer: 1 April, 1927.” • ■
It is the settled rule of practice in this jurisdiction that, on a motion to nonsuit, the evidence which makes for the plaintiff’s claim and which tends to support his cause of action, whether offered by the plaintiff or elicited from the defendant’s witnesses, is to.be taken and considered in its most favorable light for the plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom.
The evidence in the present action tended to show: That the family of plaintiff’s intestate was unaware of the provisions of the policy until plaintiff’s intestate’s son and brother-in-law, who had charge of plaintiff’s intestate’s business, the Nelson Vertical Paper Cutter Oo., had to pay a premium on the policy and went to the lock box and got the policy and found it was a disability benefit policy. In answer to a telegram sent defendant’s assistant manager, the defendant answered as follows: “Greensboro, N. 0. W. A. Johnson, Nelson Vertical Paper Cutter Co., Littleton, N. C. We were advised last week by our Raleigh office that Mr. Nelson was incapable of managing his affairs, and requested them to advise family to have a guardian appointed, as disability benefits cannot be paid except to guardian. We have been holding file awaiting guardianship papers. Letter follows. Jefferson Standard Life Insurance Co.”
Plaintiff was appointed guardian, and total and permanent disability information was submitted to defendant on 17 October, 1928. From that date until plaintiff’s intestate died the disability benefits were paid by
defendant to plaintiff as guardian. Tbis action is for the disability benefits prior. In the information furnished defendant, on II October, 1928, we find: “(7) Give names and addresses of attending physicians: Dr. L. H. Justis, Littleton, N. C.
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ClaeKSON, J.
The defendant, at the close of plaintiff’s evidence and at the close of all the evidence, made motions for judgment as in case of nonsuit. C. S., 567. The court below overruled the motions and in this we can see no error.
In
Rhyne v. Insurance Co.,
196 N. C., 717,
Stacey, C. J.,
speaking for a unanimous Court, citing numerous authorities, said, at p. 718: “It is considered by a majority of the courts that a stipulation in a contract of insurance requiring the assured, after suffering injury or illness, to perform some act, such as furnishing to the company proof of the injury or disability within a specified time, ordinarily does not include cases where strict performance is prevented by total incapacity of the assured to act in the matter, resulting from no fault of his own, and that performance within a reasonable time, either by the assured after regaining his senses or by his representative after discovering the policy, will suffice. . . . (p. 719).' But we are content to place our decision on the broad ground that, notwithstanding the liberal meaning of the words used, unless clearly negatived, a stipulation in an insurance
policy requiring notice, should be read with an exception reasonably saving the rights of the assured from forfeiture when, due to no fault of his own, he is totally incapacitated from acting in the matter. That which cannot fairly be said to have been in the minds of the parties, at the time of the making of the contract, should be held as excluded from its terms.” A petition to rehear the Rhyne action was denied 31 May, 1929. See
Rhyne v. Jefferson Standard Life Ins. Co., ante,
419.
In Vol. 2, C. S., under Insurance, subchap. 5, accident and health insurance, C. S., 6479, dealing with standard provisions in policy under subsec. 5, is the following:
“Failure to give notice within the time pro<-vided in this policy shall not invalidate any claim, if it shall he shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible.”
(Italics ours.)
It will be noted that under the standard provisions in policies, where time limit is fixed, yet the General Assembly realizing that a hard and fast rule should not always be applied, put in the above provision to meet varying contingencies that might arise. Although the above provision was not cited to this Court, in the case of
Mewborn v. Assurance Corporation,
198 N. C., at p. 158, yet this Court held: “The expression Immediate written notice,’ as used in the policy, we apprehend, was intended to impose upon the plaintiff the exercise of reasonable diligence in giving the required notice, which, under the apparent weight of authority, should be measured by his ability and opportunity to act in the premises.
Carey v. Farmers, etc., Ins. Co.,
27 Ore., 146, 40 Pac., 91;
Rhyne v. Ins. Co.,
196 N. C., 717, 147 S. E., 6.” Under C. S., 6479,
supra,
latter part subsec. 4, we find: “If Form (A) or Form (C) is used the insurer may at its option add thereto the following sentence: ‘In event of accidental death immediate notice thereof must be given to the insurer.’ ”
The defendant contends that under the policy contract sued on filing of proofs of disability was a condition precedent to the attaching of liability.
We
cannot so hold. The
Rhyne case, supra,
was thoroughly considered by this Court, and we see no reason to change our opinion. There is no question made, and it is admitted that plaintiff’s intestate paid all the premiums demanded by defendant for disability benefits to plaintiff’s intestate when “wholly and continuously disabled by bodily injuries or disease other than mental and will be permanently, continuously and wholly prevented thereby from pursuing any occupation whatsoever for remuneration or profit,” etc.
Plaintiff’s intestate under the provisions of the policy was clearly entitled to be paid from the time he was “wholly and continuously disabled,” etc., but defendant contends that the policy contract, although the premiums have been paid, for the disability, as found by the jury,
occurred 1 April, 1927, that there is a condition precedent that makes the filing of proofs necessary before liability attaches. The defendant was paid for the disability benefits and there was disability commencing 1 April, 1927, and continued. The defendant’s contention, under the facts of this case, is. too technical. If we should so hold, the policy contract would be as it were a body without a heart.
With the law settled.in this jurisdiction, as above stated, what was the evidence? The battle waged in the court below was over these issues. We set them forth with the answers by the jury: “(1) Did Mey-nardie Nelson, the insured, become wholly and continuously disabled by disease, other than mental, and was he permanently, continuously and wholly prevented thereby from pursuing any occupation whatsoever for remuneration or profit, as alleged in the complaint? Answer: Yes. (2) If so, from what date? Answer: 1 April, 1927. (3) If he became so disabled prior to 17 October, 1928, was he continuously so insane that he was incapable of, and unable to furnish proof of such disability, as required by the terms of the policy, or to procure some one to do it for him? Answer: Yes. (4) If so, from what date? Answer: 1 April, 1927.” • ■
It is the settled rule of practice in this jurisdiction that, on a motion to nonsuit, the evidence which makes for the plaintiff’s claim and which tends to support his cause of action, whether offered by the plaintiff or elicited from the defendant’s witnesses, is to.be taken and considered in its most favorable light for the plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom.
The evidence in the present action tended to show: That the family of plaintiff’s intestate was unaware of the provisions of the policy until plaintiff’s intestate’s son and brother-in-law, who had charge of plaintiff’s intestate’s business, the Nelson Vertical Paper Cutter Oo., had to pay a premium on the policy and went to the lock box and got the policy and found it was a disability benefit policy. In answer to a telegram sent defendant’s assistant manager, the defendant answered as follows: “Greensboro, N. 0. W. A. Johnson, Nelson Vertical Paper Cutter Co., Littleton, N. C. We were advised last week by our Raleigh office that Mr. Nelson was incapable of managing his affairs, and requested them to advise family to have a guardian appointed, as disability benefits cannot be paid except to guardian. We have been holding file awaiting guardianship papers. Letter follows. Jefferson Standard Life Insurance Co.”
Plaintiff was appointed guardian, and total and permanent disability information was submitted to defendant on 17 October, 1928. From that date until plaintiff’s intestate died the disability benefits were paid by
defendant to plaintiff as guardian. Tbis action is for the disability benefits prior. In the information furnished defendant, on II October, 1928, we find: “(7) Give names and addresses of attending physicians: Dr. L. H. Justis, Littleton, N. C. (8) State fully all symptoms in your condition from its beginning to the present time — weakness, eruptions on hands and feet. (9) On what date were you forced to give up your occupation or work? Feby., 1927. (10) Are you now confined to your bed? Tes. Home? Yes. If so, how long have you been so confined? Practically entire time since Feby., 1927 — home and bed. (11) Have you been an inmate of a hospital, asylum, sanitarium, home, or health resort of any kind? If so, give dates, place and full particulars. Washington Sanitarium, Washington, D. C., 9/6/27. Tucker Sanitarium, Richmond, Ya., 5/27/27.” This was accompanied by Friend’s statement, in part as follows: “(7) When did his present illness begin? About 3 years ago. (8) What is the nature of his present illness? General debility, superinduced, in my opinion, by pellagra. (9) Is he at the present time improving? Can’t say. (10) Is he, in your opinion, totally and permanently incapacitated from following any business or profession for gain or profits? Yes.” The claimant’s statement was signed by plaintiff’s intestate, but prepared by the bookkeeper for plaintiff’s company, with plaintiff’s intestate’s son and in the absence of plaintiff’s intestate.
Plaintiff’s intestate’s physician attended him from 8 November, 1926. He had pellagra, complicated by mental symptoms. The physician testified: “In my opinion, Mr. Nelson was continuously disabled from the 8th of November, 1926, because he was not rational or apparently rational, long enough, I do' not think, to transact any business that would be satisfactory. His physical condition, during that time, was very poor.
... I don't think he had the ability to attend to business, physical or m.ental,
from that time until 17 October, 1928. In my opinion
he was physically and mentally diseased."
The defendant admitted and paid disability benefits from 27 October, 1928, when guardian was appointed until his death.
Similar testimony was given by his wife, two sons, brother-in-law and druggist. His wife was asked the following: “What, in your opinion, was his physical condition at that time, with respect to ability to follow any occupation for remuneration or profit? Answer:
He was both disabled mentally and physically,
I know, to pursue any occupation.
I do not reckon that; I know that.
Q. How long did that condition continue? A. It grew worse all the time, and we usually had an attendant with him all the time, because he had these hallucinations or delusions all the time, and of course we were afraid for him to go anywhere, and I watched him all the time, or one of the boys watched him
every night. We had a colored man all the time except when one of the hoys was with him.” These and similar questions and answers were objected to by defendant when the questions were ashed numerous witnesses for plaintiff, but the court below allowed them and in this we think there was no error.
We do not think that
Stanley v. Lumber Co.,
184 N.
C.,
302, applicable. That was a personal injury case, and the witness could not express an opinion on the point in issue, but there are exceptions. See
Barnes v. R. R.,
118 N. C., 264.
In
White v. Hines,
182 N. C., at p. 279, the law is thus stated: “The defendants offered in evidence a paper-writing purporting to be the ward’s receipt for $554 and a release of the railroad company from all liability resulting from the derailment. The plaintiff replied that Samuel A. White was mentally incapacitated to such an extent- that at the time of its execution he could not comprehend the nature and effect of the instrument to which he had affixed his signature. Evidence as to White’s mental condition, then,, was both material and essential. The defendants contended that testimony to the effect that he 'was crazy’ or 'not normal,’ was the statement of a positive conclusion, or fact, and, for this reason, incompetent. But in this jurisdiction it is established that a nonexpert witness, who has had conversation and dealings with another, an'd a reasonable opportunity, based thereon, of forming an opinion as to the mental condition of such person, is not disqualified on the ground that his testimony is a mere expression of opinion.
McLeary v. Norment,
84 N. C., 235;
In re Stocks,
175 N. C., 224;
In re Broach,
172 N. C., 522. One not an expert may give an opinion, founded upon observations, that a certain person is sane or insane.
Whitaker v. Hamilton,
126 N. C., 470;
Clary v. Clary,
24 N. C., 78.”
From the finding of the jury that the disability took place 1 April, 1927, we think that the refusal to give certain instructions prayed by defendant becomes immaterial. The contentions of the parties were fairly given and the charge covered all the material aspects of law presented by the evidence. The issues submitted were proper from the pleadings and determinative of the controversy. The charge does not impinge C. S., 564. Taking the charge as a whole, we do not think there was any error in not giving the prayers for instructions as prayed for by defendant. Taking the evidence in the light most favorable for plaintiff, on all the evidence, it was.amply sufficient to support the verdict. In the judgment there is
No error.