Bulluck v. Mutual Life Insurance

BeoodeN, J. Five recent decisions of this Court discuss the liability of insurance companies to the assured resulting from permanent disability to engage in a “gainful occupation,” to wit: Buckner v. Ins. Co., 172 N. C., 762; Lee v. Ins. Co., 188 N. C., 538; Fields v. Assurance Co., 195 N. C., 262; Brinson v. Ins. Co., 195 N. C., 332; Metts v. Ins. Co., 198 N. C., 197. The Buckner case, supra, declared: “The authorities are practically unanimous that under the terms of this policy plaintiff cannot recover without showing a bodily injury that will incapacitate him not only from following his usual avocation of fireman, but also from pursuing any other gainful occupation. The language is too plain and the meaning too unmistakable to permit an enlargement of the terms of the contract by construction. It is unfortunate for the plaintiff, but “it is so nominated in the bond.” The defendant relies upon the Buckner case. *645 There is a sharp divergence among courts and text-writers in regard to the construction of clauses in insurance' policies dealing with such total or permanent disability as to render it impossible “for the insured to follow a gainful occupation.” This divergence has produced two schools of thought upon the subject. The first school of thought adheres to a strict construction of such contracts, and the second school maintains a liberal construction thereof. The view of the liberal constructionist is well stated by the Missouri Court in Foglesong v. Modern Brotherhood, 97 S. W., 240. The pertinent clause in the policy of insurance under discussion provided for indemnity for “permanent and total disability . . . which renders him unable to carry on or conduct any vocation or calling.” The Court said: “Common knowledge of the occupations in the lives of men and women teaches us that there is scarcely any kind of disability that prevents them from following-some vocation or other, except in cases of complete mental intertia. "WV have examples of persons without hearing and without sight following a vocation — some without feet, and some without hands, engaged in business. The achievements of disabled persons are seemingly marvelous. Under defendant’s theory, the plaintiff might embark in the peanut trade or follow the business of selling shoestrings or lead pencils, or follow some similar calling; in which instances, under the rule invoked, there would be no disability within the meaning of the policy. In our opinion, such was not within the contemplation of the parties.” North Carolina has been classified in the decisions of various courts as adhering to the strictest construction of such contracts. This classification has resulted from the decision in Buckner v. Ins. Co., 172 N. C., 762, which has been cited in many jurisdictions. 24 A. L. R., 203; 37 A. L. R., 151; 41 A. L. R., 1376; 51 A. L. R., 1048; McCutchen v. Pacific Mutual Life Ins. Co., 151 S. E., 67. The Buckner case was distinguished in the Brinson case, supra, in which latter case the Court said: “That in addition to his bodily injuries, resulting directly from the accident, plaintiff has suffered and is now suffering from a disease, which incapacitates him from pursuing not only his occupation as a farmer, but also any other gainful occupation, in which effort, either physical or mental is required.” None of the cited cases undertake to define the expression “gainful occupation.” The Supreme Court of Minnesota, in Carson v. N. Y. Life Ins. Co., 203 N. W., 209, discussed liability under a policy providing indemnity when the insured “has become wholly disabled by bodily injury or disease so as he is and will be presumably thereby permanently and continuously prevented from engaging in any occupation whatever for remuneration or profit.” Construing the meaning of the words used the Court said: “It must mean any occupation similar to that in which he had ordinarily been engaged or for which he may be *646 capable of fitting himself within a reasonable time. If the disability prevents the insured from performing the essential parts of such an occupation with substantial continuity, it should entitle to the income payment promised.” The Texas Court in Great Southern Life Ins. Co. v. Johnson, 25 Southwestern (2d), 1093, considered a policy of insurance providing indemnity if the disability resulted from bodily injury or disease “so that he is and will be thereby permanently, continuously and wholly prevented from performing any work for compensation or profit or from following any gainful occupation.” The Court said: “The term ‘gainful occupation’ is likewise a relative one; the insured’s occupation and earning capacity at the time the policy issued was in contemplation of the parties — what would be a ‘gainful occupation’ for one may not be such for another. A prosperous merchant with a constantly expanding business, earning large and continually increasing profits, who because of injuries received is totally disabled from continuing that business, and it becomes bankrupt as a result, certainly cannot be said to pursue a ‘gainful occupation,’ compared to the other, if he is fortunate enough to earn something, though out of all proportion to what he had previously earned.” Fagerlie v. N. Y. Life Ins. Co., 278 Pac., 104; Cooley’s Briefs on Insurance, Vol. 6, 5533, et seq.j Couch — Cyclopaedia of Insurance Law, Vol. 7, section 1686, et seq. 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 siiffered such total disability as to render it-“impossible to follow a gainful occupation.” The physicians both testified that in their opinion the disease from which plaintiff suffered would not result in permanent disability, and the defendant insists that, as the disease is uncommon, the nature and course of the malady lies exclusively in the field of expert and scientific knowledge. Hence, the testimony of the physicians should be accepted as conclusive upon such technical subject. Undoubtedly, this view of the law, in proper eases, would perhaps be sound and maintainable, but in the case at bar the paramount question was whether the plaintiff was able to engage in a gainful occupation. The ability of a party to perform physical or mental labor is not a question of such exclusively technical significance as to permit éxpert testimony to be given conclusive effect. Indeed, the identical question arose in Fields *647 v. Assurance Co., supra, in wbicb tbe physician bad testified tbat tbe plaintiff was not in bis opinion permanently disabled. Moreover, there was a conflict between tbe testimony of physicians and tbe plaintiff with respect to permanent disability, and it has been tbe uniform policy of tbe law of this State, for many years, to submit conflicting evidence to tbe jury upon tbe theory tbat in tbe last analysis tbe jury is tbe weigh-master of tbe evidence. No error.