Buckner v. Jefferson Standard Life Ins. Co
| Decision Date | 19 December 1916 |
| Docket Number | (No. 547.) |
| Citation | 90 S.E. 897 |
| Court | North Carolina Supreme Court |
| Parties | BUCKNER. v. JEFFERSON STANDARD LIFE INS. CO. |
Appeal from Superior Court, Buncombe County; Adams, Judge.
Action by Horace G. Buckner against the Jefferson Standard Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed, and motion to nonsuit allowed.
This is a civil action tried upon these issues:
(1) Has the plaintiff become wholly disabled by bodily injuries, and permanently, continuously and wholly prevented thereby from pursuing any and all gainful occupations, as alleged in the complaint? Answer: Yes.
(2) Is the plaintiff entitled to recover of the defendant the sum of two thousand ($2,000.00) dollars, as alleged in the complaint? Answer: Yes.
From the judgment rendered, defendant appealed.
Brooks, Sapp & Williams, of Greensboro, and Merrimon, Adams & Johnston, of Asheville, for appellant.
Mark W. Brown and Zeb F. Curtis, both of Asheville, for appellee.
The plaintiff seeks to recover $2,000 on a policy of insurance issued by defendant to plaintiff, containing the following provisions:
"Upon receipt of due proof of the total and permanent blindness or deafness of the insured, or of the loss of both hands at or above the wrist; or of the loss of both feet at or above the ankle; or of the loss of one limb and one eye; or of the loss of one hand at or above the wrist and of one foot at or above the ankle; or that he has become wholly disabled by bodily injuries, loss of reason or disease, and will be permanently, continuously and wholly prevented thereby from pursuing any and all gainful occupations, after one full annual payment shall have been made and before a default in the payment of any subsequent premium, provided, such total and permanent disability shall occur before the insured attains the age of sixty years, the company by indorsement in writing on this contract will, at the option of the insured, either agree to pay, " etc
At the conclusion of the evidence defendant moved to nonsuit. The motion was over ruled, and defendant excepted. The plaintiff was the only witness examined, and testified, in substance, that on December 26, 1915, he was oiling relief valves of an engine on which he was fireman, and was shaken off the engine which ran over and cut off his left hand five inches above the wrist. Plaintiff testified that he had not been able to do any work since the loss of his hand, but had chopped wood with one hand; had not been able to follow any occupation. On being asked, "What kind of work can you do now?" he replied, "What a man could do with one hand."
It is manifest that plaintiff cannot recover for the loss of one hand, for the company contracts to pay only for the loss of both hands or the loss of one hand and one foot. In 1 Cyc. 272, it is said:
"But where the policy provides for the payment of a certain sum for the 'loss of one entire hand and one entire foot, or two entire hands or two entire feet, ' it shows a distinct purpose to stipulate for the loss of two and not one limb, or part of two limbs, before a liability can accrue."
Recognizing this, plaintiff claims "that he has become wholly disabled by bodily injuries, and will be permanently, continuously, and wholly prevented thereby from pursuing any and all gainful occupations, " and bases his right to recover on that clause of the policy. If the policy contained an agreement to pay in case plaintiff was totally disabled from following his usual occupation (as was the contract in many of the adjudicated cases), we should hold that he is entitled to recover upon the facts of this case. But the evidence fails to disclose a total disability that will "permanently, continuously, and wholly" incapacitate plaintiff "from pursuing any and all gainful occupations." 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." In a similar case in a policy containing practically the same conditions, the Court of Appeals of Georgia, in Whitton v. National Life Insurance Company, 17 Ga. App. 525, 87 S. E. 827, said:
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State ex rel. Met. Life Ins. Co. v. Allen, 33949.
... ... Parten v. Jefferson Standard Life Ins. Co., 117 S.E. 772, 30 Ga. App. 235; Life & Casualty Co. v. Jones, 73 So. 566, 2 Miss. 506; Buckner v. Jefferson Standard Life Ins. Co., 90 S.E. 897, 172 N.C. 762; Lee v. New York Life Ins. Co., 125 ... ...
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Metropolitan Life Ins. Co. v. Lambert
... ... Jones, 73 So. 566; ... Shipp v. Metropolitan Life Insurance Company, 111 ... So. 453; Buckner v. Jefferson Standard Life Insurance ... Co., 90 S.E. 897, 172 N.C. 762; Lee v. New York Life ... ...
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Hughes v. Mutual Life Ins. Co. of New York
...It was held that the entry of a nonsuit was proper. The court relied upon its earlier decisions, including Buckner v. Jefferson Standard Life Ins. Co., 172 N.C. 762, 90 S.E. 897, in which it had said "* * * Plaintiff cannot recover without showing a bodily injury that will incapacitate him,......
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Marchant v. N.Y. Life Ins. Co
...this court in construing the policy followed the decision of the Supreme Court of that state in the case of Buckner v. Jefferson Standard Life Ins. Co., 172 N. C. 762, 90 S. E. 897. This case does not appear among those listed above as examples of the more liberal interpretation in favor of......