Bradley v. Pritchard

Denny, J. The defendants have abandoned all their exceptions and assignments of error except to the refusal of the court below to sustain their motion for judgment as of nonsuit. Therefore, the sole question for consideration and determination is whether or not the plaintiff’s evidence, when considered in the light most favorable to him, was sufficient to carry the case to the jury. The pension agreement, pursuant to which the plaintiff claims the surrender value of the insurance policy issued on his life when he qualified for the benefits under the pension plan on 17 December 1948, sets out what is required to establish total disability under the agreement. It provides: “In order to establish such disability, a Doctor of Medicine, approved by the COMPANIES, must certify to the COMPANIES in writing that the Participant is disabled to perform the job for which he was employed, or similar work.” The appellants cite and rely upon Thigpen v. Insurance Co., 204 N.C. 551, 168 S.E. 845; Boozer v. Assurance Society, 206 N.C. 848, 175 S.E. 175; Hill v. Insurance Co., 207 N.C. 166, 176 S.E. 269; Lee v. Assurance Society, 211 N.C. 182, 189 S.E. 626; Medlin v. Insurance Co., 220 N.C. 334, 17 S.E. 2d 463; Jenkins v. Insurance Co., 222 N.C. 83, 21 S.E. 2d 832; Ford v. Insurance Co., 222 N.C. 154, 22 S.E. 2d 235; Johnson v. Assurance Society, 239 N.C. 296, 79 S.E. 2d 776; and Andrews v. Assurance Society, 250 N.C. 476, 108 S.E. 2d 921. In each of the above cases the plaintiff or beneficiary, before he or *180 she was entitled to recover under the provisions of the contract or policy of insurance involved, had to be both totally and permanently disabled to such an extent as to be unable to pursue any occupation whatsoever for remuneration or profit. Recovery was denied in each of the above cases because the evidence was insufficient to establish such disability. In Medlin v. Insurance Co., supra, it is said: “This Court has frequently construed total and permanent disability clauses in life insurance policies to mean that the insured cannot recover disability benefits if he is able to engage with reasonable continuity in his usual occupation or in any occupation that he is physically and mentally qualified to perform substantially the reasonable and essential duties incident thereto. This rule of law has been given application to the extent of denying benefits to an insured who, though suffering from a severe disability, continues to work at a gainful occupation.” In the case of Bulluck v. Insurance Co., 200 N.C. 642, 158 S.E. 185, this Court, speaking through Brogden, J. said: “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 plaintiff, under the terms of the agreement involved herein, is not required to show total and permanent disability that would prevent him from performing the duties of any other occupation, but only that there was total and permanent disability to the extent that he could not perform with reasonable continuity the “job for which he was employed (as a glazier), or similar work.” In light of the provisions of the pension agreement and the testimony adduced in the trial below, in our opinion, the plaintiff made out a case for the jury. Bulluck v. Insurance Co., siupra; Guy v. Insurance Co., 206 N.C. 118, 172 S.E. 885; Gennett v. Insurance Co., 207 N.C. 640, 178 S.E. 87; Leonard v. Insurance Co., 212 N.C. 151, 193 S.E. 166. The ruling of the court below is Affirmed.