Civil
action to recover on policy of insurance benefits for total
and permanent disability and for waived premiums paid.
The
"total and permanent disability provisions" of the
policy of insurance issued to plaintiff by defendant on
February 11, 1931, upon which claim was filed by plaintiff in
August, 1940, and upon which this action is based, are these
"Upon receipt of proof satisfactory to the company at
its Home Office that while the said policy was in full force
and effect, before default in the payment of premiums and
before the anniversary of said policy on which the age of the
insured at nearest birthday is sixty years, the insured has
become totally disabled as defined below and will be
continuously so totally disabled for life, or if
the proof submitted is not conclusive as to
the permanency of such disability but establishes that the
insured is, and for a period of not less than four
consecutive months immediately preceding receipt of proof has
been, totally disabled as defined below, the company will (1)
waive the payment of any premium falling due under said
policy during such disability ***, and (2) pay to the insured
*** a monthly income of one hundred and 00/100 Dollars ***.
Disability shall be considered total whenever the insured
becomes disabled by bodily injury or disease so that he is
wholly prevented thereby from engaging in any occupation and
performing any work for compensation or profit. *** The
disability benefit herein provided shall not be payable if
disability shall have resulted *** from bodily injuries self
inflicted".
For
cause of action, in this connection, plaintiff in his
complaint alleges "that for many years plaintiff has
been suffering from a nervous and mental trouble, also from
ulcerated stomach and other diseases of the body and said
suffering and diseases have so affected the physical
condition of this plaintiff that he has been unable since the
early fall of 1938 to do any work and same has prevented him
from engaging in any occupation for remuneration or
profit" which "condition has grown worse from time
to time and since the fall of 1938 he has not been able and
has not done any work whatsoever for remuneration or profit
and has been totally and permanently disabled".
In
answer thereto defendant denies this allegation, and (1)
avers that plaintiff is not totally and permanently disabled
as defined in the disability provision contained in the
policy upon which he sues; and (2) that even though plaintiff
be totally and permanently disabled, his condition has been
caused and brought about by a voluntary, excessive and
continuous use of alcohol and drugs, and is not covered by
the wording and intendment of the policy.
Evidence
for plaintiff is substantially as follows: Plaintiff, 40
years of age, has been licensed to practice law and practiced
in Williamston, North Carolina, until the latter part of the
year 1939, when he closed his office. He "has been a
nervous man" for many years. Though "he drank a
little before his father's death" in 1938
afterwards he was known to drink whiskey to excess, and
"when he was drinking bad, he drank two or three pints a
day, or during the night and day". After the death of
his father, his mother states, "he would take too much
whiskey and I sent him to Westbrook at Richmond four
different times". He remained at Westbrook for a total
of seventy-eight days during the period beginning February
17, 1939, and ending June 26, 1942. He also "went to
Pine Bluff once" and "to Raleigh three times"
"not entirely for drinking", but "to get his
nerves straight". "Once or twice he wasn't
drinking at all". His mother testified: "He is what
I call a nervous wreck. He is just so nervous at times he is
like a worm in the fire; he can't be still anywhere. It
has been coming on him gradually for seven or eight
years". She also says: "There were periods of time
in the last two or three years that he did not drink any
whiskey. Sometimes he would go all to pieces so bad he felt
like he had to have something. He would be so nervous that he
couldn't be still and had to take a drink of whiskey to
try to quiet himself, and at times that would sort of quiet
his nerves. Of course the after-effect would be worse than
before he started. *** When he went to Westbrook first it was
in February, 1939. When he came back he was sober for a
while, didn't drink any whiskey. During this time he was
very nervous and could not sleep. *** He came back in the
middle of the summer the last time and since that time has
been a sober man. *** He is at home. He came down here and
saw Dr. Darden this morning and he went to pieces so bad we
thought it best for him to go back home. *** He was
sober". She further testified that plaintiff also
"went to Johns Hopkins Hospital for treatment for his
stomach,--complained of his stomach, and that for the last
two or three years he has been troubled with
hemorrhoids" *** and that "he has also had trouble
with his teeth". His wife testified: "On August
1940, (that is the date when plaintiff filed claim for
disability benefits) and the year prior to that time, he was
just as nervous to me as anybody could be. *** He has been a
nervous man all the years I have known him, but he has grown
worse *** as far as his nerves are concerned".
Dr
O. B. Darden, a medical expert and psychiatrist connected
with Westbrook Sanatorium at Richmond, Virginia, as witness
for plaintiff, testified: "J. W. Bailey, plaintiff, was
admitted to our institution
four times. The first time was February 17,
1939, and he remained under treatment until March 16, 1939. I
examined him and I saw him virtually every day. The next time
he entered the institution was September 27, 1941, and he
remained until October 24, 1941. I again examined him both
physically and mentally and he was under my observation and
treatment each day. He again entered the institution on
October 28, 1941, and left November 3, 1941. I again
diagnosed his case and saw him every day while he was there.
He was admitted again on June 11, 1942, and stayed until June
26, 1942. I again examined him and gave him treatment each
day that he remained". Then, under cross examination as
to the above, the doctor testified: "I first saw Bailey
in February, 1939. He came to our institution. I think I
admitted him. He had been drinking. He said he did not come
to get off drinking. The purpose of his being in our
institution was, I think, to be treated for what was wrong
with him. He was drinking, but that was not the fundamental
thing. I have no idea as to the extent of his drinking. The
first time, according to the informant, he had been drinking
excessively. He had stepped it up at night from one half pint
to a pint and quart during the day. The second time he came
to our institution he was not drinking when he was admitted.
The third time he left us against our advice on the 24th and
came back the 28th. He went to town and began drinking. The
second time he stayed from September 27th till October 21st,
and he left against our advice and went up town and got drunk
and he came back and stayed until October 28th. The third
time he went on June 11th and left on June 26th. He was
drinking then. Our treatment was directed towards getting him
to understand his condition, so that he could make a better
adjustment in the community. After three days we withdrew
whiskey. This is general treatment we give. We did not treat
him for inebriacy". Again reverting to testimony of the
doctor on direct examination--"From my various
examinations and observations of him on these various visits
I thought he was mentally sick. This conclusion was reached
from the symptoms that I observed and the history of him that
we received and the results of our examination. As to his
physical status, we found nothing significant from the
standpoint of his present condition. We found some pyorrhea
and dental infection and bad teeth, and he was underweight.
We found no external nor internal hemorrhoids. He was very
nervous and very restless *** physically and mentally. *** He
had to be doing something all the time, walking around, up
and down, and in his talks he was continuously trying to make
himself impressive, though what he was saying had no meaning
in so far as we were concerned in the application of what we
felt about his own situation. In so far as he was concerned
there was no reason for his being there; he didn't need
treatment and there was nothing wrong with him. There was
something in his situation, meaning his situation at home and
in his business, that made it impossible for him to get down
to work and stick to it, which he explained as being some
outside influence that kept him from his business and from
him taking his rightful place in the group at home, and for
that reason he wanted to go home, thought it mandatory that
he do, his business needed him, and characteristically of
such people, he would write us a letter to impress that upon
us, but he did complain of being restless, nervous, and did
not sleep well. At times he would break down and cry without
any reason, showing a very definite emotional instability.
There was no evidence that his judgment was at all good. We
thought it was definitely impaired because of his sickness.
*** We went into his condition as thoroughly as we could and
from the standpoint of a laboratory there was nothing
organically wrong. He had been drinking some, and, as most
people who drink, showed some *** in his urine. It cleared
up, and examination of the blood showed that there was no
damage *** because of damaged kidneys, so both urine
examination and the blood examination showed that the kidneys
were not...
