Andrews v. Equitable Life Assurance Society

WinborNE, C. J. The determinative question on this appeal is whether the trial court erred in sustaining defendant’s motion for judgment as of nonsuit entered at the close of plaintiff’s evidence. Testing the sufficiency of the evidence, under applicable principles of law, in the light most favorable to plaintiff, and giving to her the benefit of all reasonable inferences to be drawn therefrom, it is manifest that the trial court correctly ruled in granting the nonsuit. The identical provision, pertaining to total permanent disability has been the subject of four other recent cases in this Court against the present defendant. They are: Boozer v. Assurance Society, 206 N.C. 848, 175 S.E. 175; Johnson v. Assurance Society, 239 N.C. 296, 79 S.E. 2d 776; Drummond v. Assurance Society, 241 N.C. 379, 85 S.E. 2d 338, and Fair v. Assurance Society, 247 N.C. 135, 100 S.E. 2d 373. The facts in these cases are similar to the facts in instant case, indeed, ¡more favorable to plaintiff, for there the plaintiffs had some organic,., condition,— while here the plaintiff has no organic disease. And in neither does it appear that at the time the insurance was terminated the plaintiff was totally and permanently disabled within the meaning of the insurance provision of the insurance policy. The testimony of the doctors, under cross-examination, completely negatives any opinion given on direct examination to the effect that plaintiff, at the time the insurance was terminated, was totally and permanently disabled. Hence, as in the cases above cited, evidence does not support the crucial averment which is essential to recover, to wit: that she was totally and permanently disabled by bodily injury or disease and will thereby presumably be continuously prevented for life from engaging in any occupation or performing any work for compensation of financial value — on or before February 7, 1957, the date of her discharge for cause and the termination of the insurance. The judgment below is Affirmed.