Lee v. New York Life Insurance

Supreme Court of North Carolina
Lee v. New York Life Insurance, 125 S.E. 186 (N.C. 1924)
188 N.C. 538; 1924 N.C. LEXIS 119
Hoke

Lee v. New York Life Insurance

Opinion of the Court

Hoke, C. J.

Under a correct and comprehensive charge, in which the positions of the respective parties and the pertinent evidence were fully and fairly stated, the jury has rendered its verdict for plaintiff, and we find no reason for disturbing the results of the trial. On the determinative question as contained and presented in the issue, the court, among Other things, charged the jury as follows:

“Now, you will want to know what is meant by the language in the contract ‘wholly incapacitated and thereby permanently and continuously prevented from engaging in any avocation whatsoever for remuneration or profit.’ It does not mean merely that this disability may incapacitate him from pursuing his usual avocation, from working on his farm with his hands, but that it must incapacitate him from engaging in any avocation for remuneration or profit-. One of the illustrations in the books is that where a man was an engineer and was injured and claimed to be wholly incapacitated, and the court held that the fact that he was incapacitated for running an engine would not be sufficient where it appeared he was not incápacitated for engaging in other avocations from which he might secure remuneration or profits.
“Our courts hold that the act shall be in force as it reads and that the insured cannot recover because totally disabled for his own trade or business, if he retains health, strength and physical ability sufficient for tlie pursuance of other avocations by which he might engage for profit or remuneration.
“It would not be necessary that the business in which he engages should actually be profitable or remunerative and he would have to take the risk that all men take in things of that sort, and the test would not be whether he could have actually made a profit. If it was such a business that he was able to engage in it in the expectation of profit or remuneration.
“Now, the fact that the plaintiff had somebody to build him a house by the day and that he was up there and paid off the hands would not constitute an avocation for profit or remuneration, nor would his attending meetings of the board of directors. These circumstances are testified to and brought to your attention by witnesses for the purpose of enabling you to see the whole situation and determine for yourselves whether he *542 was wholly incapacitated. He contends that he had to turn over his farm to his son, because he was wholly incapacitated to do the work, and the son testified that he was in charge and has had charge of it for two or three years, and that while he advised- with his father when he is at the house and tells him what he is doing, his father does not control and direct him.
“Now, as I say, if the evidence satisfies you by its greater weight, the burden being upon the plaintiff, that during the year 1923, he was wholly incapacitated by reason of disease so that he was thereby prevented from engaging in any avocation for remuneration or profit, you would answer this issue 'Yes,’ otherwise you would answer it ‘No,’ and if you should find from the evidence that during this time, the year 1923, the plaintiff has been engaged in a remunerative avocation, then he would not be entitled to recover, and you would answer the issue 'No.’ .
“I charge you further if you find the plaintiff was engaged in farming before any disability occurred and had ceased to do manual labor, but has since that time, during the year 1923, been in active charge of his farm, managing the labor, marketing the crops and otherwise handling the same, as is the custom of well-to-do farmers, that he has been attending actively the meetings as a director of the bank, then I charge you if you find these facts from the evidence that the plaintiff would not be totally disabled for carrying on an avocation for profit or remuneration, and you would answer the first issue 'No.’
“I charge you further that under the terms of the policy, it was the intention of the insured and the company to reimburse the plaintiff if he became wholly disabled from bodily disease from engaging in any occupation for remuneration or profit, and if you should find from all the evidence that the plaintiff has not been totally disabled and that he has been able to attend to his usual affairs and manage the same with profit and remuneration to himself, then in that event, although you may find he has been sick since the issuance of the policy, you would not find he was totally disabled and you would answer the issue ‘No,’ but as I have said, if upon a fair consideration of all the evidence, the physician’s evidence and the evidence of the laymen and of the plaintiff and the defendant and their witnesses, you should be satisfied by the greater weight of the evidence that during this year he has been wholly incapacitated' by disease so that he was thereby continuously and permanently prevented from engaging in any avocation for remuneration or profit, then you would answer the issue 'Yes.’ ”

In our opinion and as applied to the facts in evidence, these instructions are in accord with the general principles prevailing on a policy of this character, and as applied and approved by this Court in Buckner *543 v. Ins. Co., 172 N. C., p. 762; Bacon on Benefit Societies, see. 395a; 4 Cooley’s Briefs, pp. 3288, 3292, 3293.

Tbe exceptions noted to tbis presentation on the principal feature of the controversy can none of them be sustained. They are either based on prayers for instruction which to the extent permissible sufficiently appear in the charge as given, or they consist of excerpts which do not in their detachment express its true significance.

In numerous decisions applicable we have approved the position that the charge of the court must be considered as a whole in the same connected way in which it was given and upon the presumption that the jury did not overlook any portion of it. If, when so construed it presents the law fairly and correctly, it will afford no ground for reversing the judgment, though some of the expressions, when standing alone, might be regarded as erroneous. S. v. Jenkins, 182 N. C., p. 818; Haggard v. Mitchell, 180 N. C., pp. 255-258; Harris v. Harris, 178 N. C., pp. 7-11; S. v. Exum, 138 N. C., p. 599.

Appellant excepts further because plaintiff, testifying in the cause, was allowed to state that his condition in 1923 was worse than it was in 1920, 1921 and 1922, when the company, without suit, had voluntarily paid the ten per cent allowance now claimed for the year 1923. We think the evidence was properly admitted. Plaintiff had described his condition in these former years as suffering from tuberculosis contracted or developed as heretofore stated, and had also stated that in those years the plaintiff had been paid the ten per cent without suit, and the testimony here received bore directly on his condition at the time here sued for, and was competent as a recognition by defendant that plaintiff’s instant condition brought him within the terms .and conditions of the policy.

On careful consideration we find no reversible error in the record and the judgment for plaintiff must be

Affirmed.

Reference

Full Case Name
Robert H. Lee v. New York Life Insurance Company.
Cited By
15 cases
Status
Published