Metts v. Pacific Mutual Life Insurance Co. of California

BkogdeN, J. From tbe language employed in tbe policy it seems apparent that disability from sickness resulting “in continuous total loss of business time” is tbe basis of awarding indemnity, such indemnity being payable during tbe “continuance of disability . . . until such time' as tbe insured engages in a gainful occupation.” It is admitted that tbe defendant owes the plaintiff tbe sum of $266.65 for indemnity accruing prior to 1 January, 1925. Tbe question, then, is: Did tbe disability from sickness cause tbe plaintiff to suffer a “total loss of business time” from January, 1925, until June, 1925? Thus a clear cut issue of fact was presented. Tbe plaintiff testified that be suffered a total loss of business time, due to sickness, from January, 1924, until June, 1925. This unequivocal testimony was qualified on cross-examination, but it was tbe function of tbe jury to determine tbe weight of tbe evidence and to find tbe essential facts. Tbe case was tried upon tbe theory that tbe policy was a disability policy rather than an income policy. Tbe defendant in apt time requested tbe court to give tbe following instructions to tbe jury: 1. “If tbe jury should find from tbe evidence that tbe defendant issued to tbe plaintiff tbe policy and contract of insurance which has been introduced in evidence, and should further find that plaintiff filed bis claim for benefits thereunder, and that tbe same were paid by tbe defendant at tbe rate of $500 a month from tbe time they became due until 14 December, 1924, and if tbe jury should further find that on 1 January, 1925, tbe plaintiff bad sufficiently recovered from bis illness so that be was able to engage in a gainful occupation as contemplated by tbe contract of insurance, then tbe plaintiff would be entitled to recover of tbe defendant benefits from 14 December, 1924, to 1 January, 1925, which amount may be calculated by you, tbe defendant claiming that it is tbe sum of $266.65, but would not be entitled to recover of tbe defendant anything after tbe said 1 January, 1925.” *200 2. “If you should find from the evidence that the plaintiff was able on and after 1 January, 1925, to engage in a gainful occupation from and after that time, but was unable to find suitable employment until 14 June, 1925, he would not be entitled to recover benefits for that period under the terms of this contract of insurance, and it will be your duty to so answer the issue.” 3. “Under this contract of insurance the defendant would not be due the plaintiff anything by reason of plaintiff’s inability to find a job or secure employment. This contract of insurance does not insure to the plaintiff a job, or a gainful occupation, but guarantees to him an income in the sum of $500 per month during the period which he is prevented from engaging in a gainful occupation solely on account of bodily injury received while the policy was in force, or disease contracted while the said policy was in force, which resulted in his continuous total loss of business time.” ■The evidence introduced warranted the special instructions requested, and the omission of the trial judge to give them, as requested, constituted error. The trial judge gave a portion of instruction number 3, but it would seem that the defendant was entitled to the instruction in its entirety. Horne v. Power Co., 141 N. C., 50, 53 S. E., 658; Marcom v. R. R., 165 N. C., 259, 81 S. E., 290; Parks v. Trust Co., 195 N. C., 453, 142 S. E., 473; S. v. Lee, 196 N. C., 714, 146 S. E., 858. New trial.