Rand v. Home Insurance Co.

206 N.C. 760

• Court: Supreme Court of North Carolina
• Decided: June 20, 1934
• Status: Published

Opinion

OlabicsoN, 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. O. S., 567. The court below overruled this motion and in this we can see no error.

The question involved: For a consideration, the premium due under the first policy was extended by defendant until 10 July, 1931, and on the second policy to 12 July, 1931. About 1 April, 1931, a little over three months before the above premiums were due, the plaintiff had a mental and physical breakdown, which continued until after the premiums were due and continued to a great extent to the trial of the cause and his disability was permanent. Notice the latter part of July, 1931, was given the defendant company of plaintiff’s disability. Under the terms of the policy, was there a forfeiture ? We think not. The jury found that the impairment of body and mind was and continued since 1 April, 1931, and he became so disabled prior to the time the premiums were due in July and he was unable to make payments of premiums, etc. The evidence on the part of plaintiff as to his mental and physical breakdown was plenary to sustain the verdict and plaintiff’s evidence was to the effect that he was a farmer about 40 years old. He had carried the first policy since 28 April, 1925, and the second since 29 September, 1926. Numa Turner, a witness for plaintiff, testified, in part: “I have known Parker practically all of his life. I know his general character; it is excellent. . . . Prior to March and April, 1931, he had the appearance of being as strong and robust as any person you ever saw, and I know personally that he was one of the hardest working men, if not the hardest working man I ever saw in my life. He always worked. He hasn’t been able to do anything since that time.”

On the early morning of March, 1931, about 2 :30 a.m., the plaintiff was taken “violently ill.” Plaintiff testified, in part: “I was suffering-terrible pains beginning in my back and going all the way down my legs, causing knots to form in my thigh and in my leg. It was almost unbearable pain. . . . I’ve suffered intense pain from that day until now.' ... I wasn’t able to do anything. I couldn’t put my shoes on. I was hardly able to walk. I was suffering such intense pain. I was under the influence of some narcotic the whole time from the first of March on. . . . From the time I saw Dr. Dewar here in April to the 10th day of July, I was getting worse all the time. I was. suffering more. I was not able to sleep. I was continuing to have to-take narcotics. ... I took narcotics from March until now, under the direction of doctors. I don’t exactly know how much. ... I happen to know the narcotics I took up to July consisted of morphine,, luminal, codein, aspirin and papin. My condition after I saw Dr. Dewar became worse. About the middle of July or the latter part of' June, or the first of July, they put me in a cast. The latter part of' June and in July I was attended by Dr. Buffalo from Garner. . . . During the months of June and July I was suffering almost unbearable pain. They had me wrapped up in blankets, electric pads and other-devices to try to keep me from suffering so. I was confined to my bed during that period of time all the time. I was unable to carry on. The disease, or suffering which I had, affected my mind to such an extent, that I wasn’t able to carry on any business. I didn’t see any of the mail or papers. . . . From that time up to the present time I have been unable to do anything. Well in the latter part of July, I was in such terrible condition that my wife phoned Dr. Dewar to come down to see me down to my home. Dr. Dewar came down. I don’t know the exact date, but I think it was the 26th or 27th of July, or something like that. Dr. Dewar came down and examined me. I was suffering terribly. He gave me a hypodermic of morphine that night while he was there and he asked me or asked my wife in my presence — he was not talking to me — but asked her in my presence if I had any insurance. She told him I did, but that she didn’t know anything about the policy. He told her ‘You had better look them up and see if they carry 'any disability clause.’ Hp to that time, the 27th or 28th of July, I had not received any notices from the insurance company of the due date of my premiums. The condition of my mind was such from my suffering that I did not realize I had any insurance on my life. It had never crossed my mind until Dr. Dewar mentioned it, the night he was there. . . . During that time I was suffering intensely, almost unbearable pain, so that sweat was popping out on me like a mule in May. I was not able to carry on any business transactions of any nature. ... In the latter part of September he brought me to Raleigh and took my tonsils out. Later they extracted my upper teeth. On the first of December, Dr. Dewar and Dr. Hugh Thompson put a plaster cast on me from my hips to my neck down at the Rex Hospital. ... I was then removed to my home with a plaster cast on me. It stayed on me for three months. During that time, I wasn’t able to move. I was at home in bed. I was confined to my bed over that period of time. . . . They took the cast off 1 March, 1932. From 1 March, 1932, up to the present time, I have been gradually getting worse. ... I now have to take something to sleep. I am unable to sleep unless I take some narcotic. In fact, now, I am still taking codein, luminal, and aspirin in capsules. When I am without the codein, luminal and aspirin, I can’t go to sleep, I hurt so bad. I toss from side to side when I go to bed. That condition exists up to now. I have not been able since the latter part of February, 1931, to perform any kind of work for profit. I have not made one cent of money. ... I have not been able to do any work of any nature since March, 1931. That condition has continued with me throughout this entire period of time. I have not received any compensation of any kind for any work performed by me during that period of time. I am not now able to perform any kind of work.”

Dr. William B. Dewar testified, in part: “I made another X-ray of him. Dr. Thompson, whom I had see him, after we had found a destructive arthritis of the third lumbar vertebra, and I agreed that he had this destructive arthritis of that vertebra. It is an infectious process, or eating away, of one of the vertebra, which is the backbone, not in the sense that the whole thing is destroyed. Only a small portion of it is destroyed.”

Mrs. J. J. McMahon, testified, in part: “It really seemed to me that he had grown worse. I think his mental condition was worse because his pain was growing worse all the time. At that time, 4 July, 1931, he was not able to carry on any business of any kind. When I was here, he was not able to read a newspaper, nor was he able to carry on a connected conversation. He was not able to carry on any business in April and May, when I was here. I was just here for the 4th of July. I was home again in August. I came especially to see him. He was suffering at that time just as much as he had been previously.”

Miss Sarah Rand, a graduate nurse, testified, in part: “Opiates were administered to him every four hours and some times more than that; at night especially; we would have to give him at least a half grain of morphine to relieve him at times. He was suffering so he didn’t pay any attention to anything. He couldn’t talk to me on any subject; not even about his condition. He did not attend to any business matters while I was there from 16 June through the summer. I was there from 1 July through 12 July. He did not attend to any business matters over that period. Q. Do you have an opinion as to whether he had sufficient mental ability to attend to any business matters over that period ? That is from 1 July through 12 July? Answer: Yes, sir. Q. In your opinion, Miss Rand, did he over that period from 1 July through 12 July have sufficient mental capacity to transact his business in connection with the farm and in connection with his affairs there about his plane and to know what he was about? Answer: No. He was taking opiates, narcotics, morphine, codein every four hours over the period of time from 1 July to 12 July, he took it all the time I was there. Q. Do you have an opinion satisfactory to yourself as to what his mental condition was over that period of time? Answer: He was suffering-such intense pain he could not discuss anything and when he took hypodermics he was in no- condition to discuss any business matters or anything around the home of any kind or about the family. He was confined to his bed continuously from 1 July to 12 July.”

Mrs. Parker Rand testified, in part: “During the months of June and July, up to 10 July and 12 July, my husband’s condition wasn’t normal. It was not normal, I should say. His mind was distraught by the fact that he was in terrible pain; also when he wasn’t suffering-such excruciating- pain it had to be deadened by the narcotics and consequently the narcotics affected his mind. He was in that condition all during July. ... I did not know that he had any health insurance. During the interval of time when he was there in bed, as I stated just now, he was not in any condition to transact any business of any kind, he couldn’t read a newspaper intelligently. He could not read his mail. I did not allow him to have his mail. He was not able to transact any business from 1 July to 13 July.”

Tbe condition of plaintiff seems to bave been worse tban Job, the example of patience, “smote Job with sore boils from the sole of his foot unto his crown.” Job, chapter 2, part verse 7.' Job’s affliction was physical — plaintiff’s affliction was mental and physical. The defendant contends that under the terms of the policy, the premiums due on 10 and 12 October were not paid, therefore the policy was null and void and of no effect. We cannot so hold, under the facts and circumstances of this case.

Under sufficient, competent evidence the issues were answered “Yes,” in plaintiff’s favor. In the judgment is the following: “And counsel representing plaintiff and defendant having further agreed that the two causes of action sued on are identical and that the same and identical issues were raised in the said second cause of action, that therefore the court should answer the issues in the second cause of action in accordance with the answers to the issues in the first cause of action.”

The decisions on the question in controversy, in the different states, are conflicting, but we think it is settled in this State by the humanitarian decision written by the Chief Justice in Rhyne v. Insurance Co., 196 N. C., 717 (719) : “But we are content to place our decision on the broad ground that, notwithstanding the literal 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. Comstock v. Fraternal Accident Association, 116 Wis., 382, 93 N. W., 22. The primary purpose of all insurance is to insure, or to provide for indemnity, and it should be remembered that, if the letter killeth, the spirit giveth life. Allgood v. Insurance Co., 186 N. C., 415, 119 S. E., 561; Grabbs v. Insurance Co., 125 N. C., 389, 34 S. E., 503.”

The Rhyne case was before this Court again, 199 N. C., 419. The same principle was laid down, that failure to give immediate notice of disability will not work forfeiture where insured is incapable of giving-such notice.

In Mewborn v. Assurance Corp., 198 N. C., 156, and in Nelson v. Insurance Co., 199 N. C., 443, the Rhyne case was cited with approval, by a unanimous Court. In the Nelson case, supra, at page 447, we said: “In 2 C. S., under insurance, subchapter 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 provided in this policy shall not invalidate any claim, if it shall be shoiun 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.”

The defendant contends that the court below committed error in permitting plaintiff to introduce in evidence policy No. 335782, issued on 14 May, 1927, and to testify with regard to the payment of benefits under this policy. We cannot so hold. The policy in question was similar in all respects to the two policies of insurance, the subject of this action, and the disability contracts attached were in all respects similar except what is contained in a letter of 23 January, 1931, which we do not think sufficiently material to affect the situation. We think that this was a circumstance and some evidence in the nature of an admission. The facts to establish defendants’ liability were practically the same under all the policies. At least it was not such prejudicial error that would call for a new trial. The defendant contends that the court below committed error in refusing to submit issues tendered by the defendant and the issues as submitted. We cannot so hold. The issues submitted were framed to cover the decisions of this Court as before set forth. The defendant introduced no evidence and we think the court below charged the law applicable to the facts fully as required by C. S., 564. For the reasons given, we find

No error.

ScheNCK, J., took no part in the consideration or decision of this case.