Edwards v. National Council, Junior Order United American Mechanics Beneficiary Degree

ClaRksoN, J. At the close of plaintiff’s evidence the defendant made a motion in the court below for judgment as in case of nonsuit. C. S., 567. The defendant introduced no evidence. The motion was denied and in this we can see no error. In Lincoln v. R. R., 207 N. C., 787 (788), it is written: “On considering a motion to nonsuit under the Hinsdale Act, C. S., 567, or a demurrer to the evidence, it is established by numerous decisions: 1. That the evidence which makes for plaintiff’s claim, or tends to support his cause of action, is to be taken in its most favorable light for the plaintiff, and he is ‘entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.’ 2. That mere discrepancies and contradictions, even in the plaintiff’s evidence, are matters for the jury and not for the court,” citing authorities. The defendant complains of the admissibility of opinion evidence about plaintiff’s ability to engage in one occupation, when the evidence discloses he had two occupations. The plaintiff testified, “I have not been able to do any work on the farm since I was injured October 1, 1938. I have tried to do work and can’t do it. . . . My injury has been continuous since the wreck. I am not improving that I can tell. If I do too much walking in the daytime I am so stiff I have to have my wife tie my shoes for me, I can wallc or stand on my feet about an hour at the time.” The first issue is as follows: “Has plaintiff, since February 20, 1939, been totally and permanently disabled by bodily injury and disease so that he is, and will be, permanently, continuously and wholly prevented thereby from performing any work whatever for compensation, gain or profit, or from following any gainful occupation?” The jury answered the issue “Yes.” This issue is according to the terms of the policy. All *46 tbe evidence is to tbe effect tbat plaintiff’s life work was tbat of a farmer. Tbe work at tbe warehouse was not bis ordinary calling and all tbe evidence was to tbe effect tbat after bis injury be was incapacitated to work at tbe warehouse. Plaintiff testified, “I wasn’t able to work there last year, so I didn’t ask for tbe job back.” Plaintiff was incapacitated to work at tbe warehouse and there was no evidence to tbe contrary. Plaintiff’s life work was that of a farmer. Numerous and sundry witnesses testified in tbe negative to tbe following, or substantially tbe following, question: “In your opinion, has Mr. Edwards, at any time since be was injured in October, 1938, been able to do with reasonable regularity tbe essential duties of a farmer?” Tbe defendant objected and excepted to many of these questions — to others it did not. In Shelton v. R. R., 193 N. C., 670, at p. 674, we find: “It is thoroughly established in this State tbat if incompetent evidence is admitted over objection, but tbe same evidence has theretofore or thereafter been given in other parts of tbe examination without objection, tbe benefit of tbe exception is ordinarily lost.” Tillett v. R. R., 166 N. C., 515; Beaver v. Fetter, 176 N. C., 334; Marshall v. Telephone Co., 181 N. C., 410; S. v. Hudson, 218 N. C., 219 ( 230). But we consider it well settled tbat tbe questions were competent. In Keller v. Furniture Co., 199 N. C., 413 (417), Adams, J., for tbe Court said: “Tbe testimony of these witnesses did not involve a question of science or a conclusion to be drawn from a hypothetical statement of facts; it was elicited as a matter within their personal knowledge, experience and observation. Tbe exception to tbe general rule tbat witnesses cannot express an opinion is not confined to tbe evidence of experts testifying on subjects requiring special knowledge, skill or learning; it includes tbe evidence of common observers testifying to tbe results of their observation. Britt v. R. R., 148 N. C., 37; Marshall v. Telephone Co., 181 N. C., 292.” In Leonard v. Ins. Co., 212 N. C., 151 (155), it is said: “We think it was competent to admit opinion evidence of nonexpert witnesses to testify as to tbe ability to engage in work.” In Bulluck v. Ins. Co., 200 N. C., 642 (646), Brogden, J., after citing many authorities, says: “Tbe reasoning of tbe opinions seem to indicate tbat engaging in a gainful occupation is tbe ability of tbe insured to work with reasonable continuity in bis usual occupation, or in such an occupation as be is qualified physically and mentally, under all tbe circumstances, to perform substantially tbe reasonable and essential duties incident thereto. Hence, tbe ability to do odd jobs of comparatively trifling nature does not preclude recovery. Furthermore, our decisions, and tbe decisions of courts generally, have established tbe principle tbat tbe jury, under proper instructions from tbe trial judge, *47 must determine whether the insured has suffered such total disability as to render it ‘impossible to follow a gainful occupation.’ ” Misskelley v. Ins. Co., 205 N. C., 496 (506-7) ; Smith v. Assurance Society, 205 N. C., 387; Fore v. Assurance Society, 209 N. C., 548; Blankenship v. Assurance Society, 210 N. C., 471; Leonard v Ins. Co., supra. The defendant contends that evidence of plaintiff having heart trouble should not have been permitted, as it was not pleaded. Dr. Daughtridge said, among other things, that an examination of Mr. Edwards’ heart showed a leaking heart and that a fluoroscopic examination showed his heart to be enlarged with typical shape found in this type of heart disease. And again, that “Mr. Edwards has already shown early signs of heart failure and that if he puts greater strain on the heart, the heart would not be able to bear it.” It was not necessary to plead heart trouble in order to offer evidence of heart trouble as another reason why the plaintiff appellee could not equip himself within a reasonable time to do some work similar to that of farming. Speaking to this question in Leonard v. Insurance Co., supra, the Court, at p. 155-6, said: “The evidence of plaintiff which defendant objected to, as to the nearsightedness of plaintiff, we think was competent under the facts and circumstances of the case. This was admitted by the court, for the purpose of showing that the plaintiff could not within a reasonable time equip himself to be a bookkeeper, conduct a store, or do anything else that required good eyesight. ... It was wholly unnecessary to refer to the nearsightedness of the plaintiff in his proof of claim, in his specifications of disability, or anywhere else except in his evidence.” The second issue was as follows: “Was due and satisfactory proof submitted defendant before the institution of this suit that plaintiff had become totally and permanently disabled by bodily injury or disease so that he is, and will be, permanently, continuously and wholly prevented thereby from performing any work whatever for compensation, gain or profit, or from following any gainful occupation ?” Defendant complains that portions of the complaint and answer introduced in evidence by plaintiff in reference to proof of claim, was erroneous. We think this is immaterial. Defendant denied that the plaintiff was “totally and permanently disabled,” and complained 'that the plaintiff did not furnish “due and satisfactory proofs that he had become totally and permanently disabled.” Without objection plaintiff testified, “I filed proof of claim on blanks sent me by the Company four or five months after I was injured.” In Misskelley v. Ins. Co., 205 N. C., 496 (505), quoting from Gerringer v. Ins. Co., 133 N. C., 407 (415), we find: “The weight of authority is in favor of the rule that a distinct denial of liability and *48 refusal to pay, on the ground that there is no contract or that there is no liability, is a waiver of the condition requiring proof of loss or death. It is equivalent to a declaration that they will not pay, though the proof be furnished,” citing numerous authorities. The exceptions and assignments of error to the charge of the court below cannot be sustained. From a careful reading of the charge, we think the court below applied the law applicable to the facts; in fact, in the charge the court read the law from decisions of this Court and applied them to the facts in the case. From the view we take of the case we think the special instructions prayed for by defendant were properly denied. From the whole record we find no prejudicial or reversible error. No error.