CuakksoN, J.
At the close of plaintiff’s evidence and at the close of all the evidence, the defendant made motions for judgment as of nonsuit. C. S., 567. The court below overruled these motions, and in this we can see no error. It is the well settled law in this jurisdiction that on a motion as of nonsuit all the evidence, whether offered by the plaintiff or elicited from defendant’s witnesses, is to be considered in the light most favorable to the plaintiff, and he is entitled to every reasonable intendment thereon and every reasonable inference therefrom.
The first issue submitted to the jury was as follows: “Did the defendant issue and deliver to the plaintiff certificate, of policy of insurance No. 3215-88, dated 1 November, 1929, as alleged in the complaint?” This issue was answered by consent “Yes.” It was admitted that the premium on this policy was paid to 30 September, 1932.
The second issue is as follows : “Did the plaintiff prior to the termination of his employment with Enka Corporation become totally and permanently disabled by bodily injury or disease whereby he will presumably be continuously prevented for life from engaging in any occupation or performing any work for compensation or financial value, as alleged in the complaint?” The jury answered “Yes” to this issue.
On this issue the court below, after placing the burden of the greater weight of the evidence on plaintiff and defining same, charged the jury in part: “On that issue I charge you that the language in the contract or policy of insurance means what it says. It means that if the plaintiff, prior to the termination of his employment with Enka Corporation, became totally and permanently disabled by bodily injury or disease so that thereby he will presumably be continuously prevented for life from engaging in any occupation or performing any work for compensation or financial value, then, in that event, he would be entitled to be reimbursed by sums and amounts as provided in the policy, otherwise he
would not be so entitled. ■ . . . The language of tbe policy does not, however, mean merely that this disability may incapacitate the plaintiff from pursuing his usual avocation, that is, working as foreman of the painters crew, or from pursuing his trade as a painter by working with his own hands, but the language of the policy means that he must be totally and permanently disabled by bodily injury or disease whereby he will presumably be continuously prevented for life from engaging in any occupation or performing any work for compensation or financial value. ... I charge you, however, that the ability to do odd jobs now and then of comparatively trifling nature would not preclude his recovery. He might do some work of a comparatively trifling nature under some circumstances, yet be totally disabled within the meaning of that clause, in the language of the insurance policy sued on in this case. (If, for instance, he performed some work now and then of a trifling nature, which was not in pursuance of ordinary care and thereby aggravated the physical trouble of which he complains, and greatly reduced his strength, the fact that he performed such work would not preclude his recovery.)” To the latter part of the above charge in brackets, an exception and assignment of error was made by defendant. We do not think it can be sustained, taken in connection with the prior portion of the charge.
In
Lee v. Ins. Co.,
188 N. C., 538, the language of the policy was: “Wholly incapacitated and thereby permanently and continuously prevented from engaging in any avocation whatsoever for remuneration or profit.” The plaintiff was allowed to recover although he could attend to minor matters.
In
Bulluck v. Ins. Co.,
200 N. C., 642 (646), speaking to the subject, we find: “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 language in the Bulluck policy was :
"Total Disability:
Disability shall be considered total when there is any impairment of mind or body which continuously renders it impossible for the insured to follow a gainful occupation.”
In
Green v. Casualty Co.,
203 N. C., 767, the language of the policy was : “The company will pay said monthly sickness indemnity for the period not exceeding one year during which the
insured shall be wholly
and continuously disabled and prevented from, performing any and every duty pertaining to any business or occupation by reason of sickness ” etc.
In the present ease the language o£ the policy is: “Totally and permanently disabled by bodily injury or disease and will thereby presumably be continuously prevented for life from engaging in any occupation or performing any work for compensation of financial value.”
The evidence in all the above eases and in the present case indicates that the jobs were of a trifling nature. Is it possible to construe a policy like the present to say that a man, although death-doomed with tuberculosis, and having a wife and seven children needing, as the plaintiff testified, “something to eat,” if he should attempt in his wasted condition to try in a feeble way to do trifling work, that this was a forfeiture of his policy ? Such a holding would be contrary to the spirit, if not the letter; of the contract.
The case of
Thigpen v. Ins. Co.,
204 N. C., 551, in which the “court crier” received $40.00 a month for his services, is distinguishable.
We think the humanitarian charge of the judge in the court below is fully borne out by the decisions of this Court.
The third issue was as follows: “Did the defendant commit a breach of the terms and conditions of said policy of insurance by failing to pay the benefits provided, as alleged in the complaint? Answer: Yes.”
The court below charged the jury on this issue: “The burden of this issue is likewise on the plaintiff to satisfy you by the greater weight of the evidence that his contentions in regard to that issue are true. A breach of contract in law is nothing more than a failure or refusal to perform the terms of the contract. Therefore, if you shall find by the greater weight of the evidence that the defendant in this case failed and refused to pay the benefits as required by the policy, then I charge you that such failure and refusal to pay would be a breach of contraen and, in that event, it would be your duty to answer the third issue, Yes; otherwise, No.”
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CuakksoN, J.
At the close of plaintiff’s evidence and at the close of all the evidence, the defendant made motions for judgment as of nonsuit. C. S., 567. The court below overruled these motions, and in this we can see no error. It is the well settled law in this jurisdiction that on a motion as of nonsuit all the evidence, whether offered by the plaintiff or elicited from defendant’s witnesses, is to be considered in the light most favorable to the plaintiff, and he is entitled to every reasonable intendment thereon and every reasonable inference therefrom.
The first issue submitted to the jury was as follows: “Did the defendant issue and deliver to the plaintiff certificate, of policy of insurance No. 3215-88, dated 1 November, 1929, as alleged in the complaint?” This issue was answered by consent “Yes.” It was admitted that the premium on this policy was paid to 30 September, 1932.
The second issue is as follows : “Did the plaintiff prior to the termination of his employment with Enka Corporation become totally and permanently disabled by bodily injury or disease whereby he will presumably be continuously prevented for life from engaging in any occupation or performing any work for compensation or financial value, as alleged in the complaint?” The jury answered “Yes” to this issue.
On this issue the court below, after placing the burden of the greater weight of the evidence on plaintiff and defining same, charged the jury in part: “On that issue I charge you that the language in the contract or policy of insurance means what it says. It means that if the plaintiff, prior to the termination of his employment with Enka Corporation, became totally and permanently disabled by bodily injury or disease so that thereby he will presumably be continuously prevented for life from engaging in any occupation or performing any work for compensation or financial value, then, in that event, he would be entitled to be reimbursed by sums and amounts as provided in the policy, otherwise he
would not be so entitled. ■ . . . The language of tbe policy does not, however, mean merely that this disability may incapacitate the plaintiff from pursuing his usual avocation, that is, working as foreman of the painters crew, or from pursuing his trade as a painter by working with his own hands, but the language of the policy means that he must be totally and permanently disabled by bodily injury or disease whereby he will presumably be continuously prevented for life from engaging in any occupation or performing any work for compensation or financial value. ... I charge you, however, that the ability to do odd jobs now and then of comparatively trifling nature would not preclude his recovery. He might do some work of a comparatively trifling nature under some circumstances, yet be totally disabled within the meaning of that clause, in the language of the insurance policy sued on in this case. (If, for instance, he performed some work now and then of a trifling nature, which was not in pursuance of ordinary care and thereby aggravated the physical trouble of which he complains, and greatly reduced his strength, the fact that he performed such work would not preclude his recovery.)” To the latter part of the above charge in brackets, an exception and assignment of error was made by defendant. We do not think it can be sustained, taken in connection with the prior portion of the charge.
In
Lee v. Ins. Co.,
188 N. C., 538, the language of the policy was: “Wholly incapacitated and thereby permanently and continuously prevented from engaging in any avocation whatsoever for remuneration or profit.” The plaintiff was allowed to recover although he could attend to minor matters.
In
Bulluck v. Ins. Co.,
200 N. C., 642 (646), speaking to the subject, we find: “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 language in the Bulluck policy was :
"Total Disability:
Disability shall be considered total when there is any impairment of mind or body which continuously renders it impossible for the insured to follow a gainful occupation.”
In
Green v. Casualty Co.,
203 N. C., 767, the language of the policy was : “The company will pay said monthly sickness indemnity for the period not exceeding one year during which the
insured shall be wholly
and continuously disabled and prevented from, performing any and every duty pertaining to any business or occupation by reason of sickness ” etc.
In the present ease the language o£ the policy is: “Totally and permanently disabled by bodily injury or disease and will thereby presumably be continuously prevented for life from engaging in any occupation or performing any work for compensation of financial value.”
The evidence in all the above eases and in the present case indicates that the jobs were of a trifling nature. Is it possible to construe a policy like the present to say that a man, although death-doomed with tuberculosis, and having a wife and seven children needing, as the plaintiff testified, “something to eat,” if he should attempt in his wasted condition to try in a feeble way to do trifling work, that this was a forfeiture of his policy ? Such a holding would be contrary to the spirit, if not the letter; of the contract.
The case of
Thigpen v. Ins. Co.,
204 N. C., 551, in which the “court crier” received $40.00 a month for his services, is distinguishable.
We think the humanitarian charge of the judge in the court below is fully borne out by the decisions of this Court.
The third issue was as follows: “Did the defendant commit a breach of the terms and conditions of said policy of insurance by failing to pay the benefits provided, as alleged in the complaint? Answer: Yes.”
The court below charged the jury on this issue: “The burden of this issue is likewise on the plaintiff to satisfy you by the greater weight of the evidence that his contentions in regard to that issue are true. A breach of contract in law is nothing more than a failure or refusal to perform the terms of the contract. Therefore, if you shall find by the greater weight of the evidence that the defendant in this case failed and refused to pay the benefits as required by the policy, then I charge you that such failure and refusal to pay would be a breach of contraen and, in that event, it would be your duty to answer the third issue, Yes; otherwise, No.”
The defendant contends that the question involved is: “Where a certificate of insurance is issued under a group insurance policy and said certificate provides that it is issued ‘subject to the terms and conditions of the (group) policy/ and, ‘This Individual Certificate is furnished in accordance with the terms of the Equitable Group Insurance Policy, which together with the employee’s application therefor, constitutes the entire contract between the parties/ and the group policy is not offered in evidence, is the plaintiff entitled to recover?” We think so, under the facts and circumstances of this case.
On this aspect, the court below charged as follows: “If you find he applied to the company for information as to how and they told him he would have to fill out certain blanks, and that he was out of them, and
be then filed a claim in bis own handwriting, the best be could do under the circumstances, I charge you that would be a substantial compliance with this requirement of the policy, and in that event, you would answer the second issue, Yes, provided you find the other facts on the second issue that I have already heretofore recited to you.” The defendant excepted and assigned error. We do not think this assignment of error can be sustained. Under the facts and circumstances in this case, the charge was not prejudicial. In its answer this contention was not made by defendant company, but it admitted “That it issued to the plaintiff Individual Certificate No. 3215-88 in the sum of $500.00 dated 1 November, 1929, with disability provisions as therein contained.” Defendant nowhere sets up this defense and tendered no issue, and in fact ouly tendered the following issue, which was, in accordance with the defense set up in its further answer of defendant: “Did the plaintiff become totally and permanently disabled by a bodily injury or disease to such extent that he will be continuously prevented for life from engaging in any occupation or performing any work for compensation of financial value, prior to the termination of his employment, 27 August, 1931 ?” The admission in the evidence is as follows: “The court: You admit if he incurred or sustained total disability within that time, you would be liable for it ? The answer of defendant’s attorney was Yes.”
Taylor v. Ins. Co.,
202 N. C., 659.
The facts in the case of
Ammons v. Assurance Society, ante,
23, are different and the case distinguishable.
The admission of certain evidence, the motion to strike out answers of witnesses, the refusal of the court to submit issue tendered by defendant, the exceptions to certain portion of the charge of the court below, excepted to and assigned as errors by defendant, we do not think prejudicial.
The court below tried the case carefully and the, charge fully set forth the contentions of the parties and applied the law applicable to the facts. In law we find
No error.