Dewease v. Travelers Ins. Co

• Decision Date: 20 November 1935
• Docket Number: No. 521.,521.
• Citation: 182 S.E. 447,208 N.C. 732
• Court: North Carolina Supreme Court
• Parties: DEWEASE. v. TRAVELERS INS. CO. et al.

182 S.E. 447

208 N.C. 732

DEWEASE.

v.TRAVELERS INS. CO. et al.

No. 521.

Supreme Court of North Carolina.

Nov. 20, 1935.

Appeal from Superior Court, Mecklenburg County; Clement, Judge.

Action by Mrs. Ruth Dewease against the Travelers Insurance Company and the Highland Park Manufacturing Company. A voluntary nonsuit was taken as to the last-named defendant, and a motion to nonsuit as to the first-named defendant having been granted, plaintiff appeals.

Affirmed.

This was an action to recover on a certificate of group insurance issued by the defendant, Travelers Insurance Company, to the plaintiff, who was at the time an employee of the Highland Park Manufacturing Company. Plaintiff claims total disability.

The certificate, dated November 4, 1926, contains the following provision: "The insurance of an employee covered hereunder shall end when his employment with employer shall end, except in a case where at the time of termination of employment the employee shall be wholly disabled and prevented by bodily injury or disease from engaging in any occupation or employment for wage or profit. In such case the insurance will remain in force as to such employee during the continuance of such disability for a period of three months from the date upon which the employee ceased to work and thereafter during the continuance of such disability while this policy shall remain in force until the employer shall notify the company to terminate the insurance as to such employee. Nothing in this paragraph contained shall limit or extend the Permanent Total Disability Benefit to which an employee shall become entitled under this policy."

The permanent total disability benefit clause in the policy is as follows: "If any employee shall furnish the company with due proof that while insured under this policy he has become wholly disabled by bodily injuries or disease, and will be permanently, continuously and wholly prevented thereby for life from engaging in any occupation or employment for wage or profit, the company will waive further payment of premium as to such employee and pay in full settlement of all obligations to him under this policy the amount of insurance in force hereunder upon his life at the time of receipt of due proofs of such disability."

Plaintiff continued in the employ of the Highland Park Manufacturing Company, and amounts sufficient to pay the premiums on her policy were deducted from her wages until August 17, 1931, when she was injured. Thereafter she ceased to be employed, and no further payments were made on the policy.

The superintendent of the Highland Park Manufacturing Company was verbally notified of plaintiff's injury shortly after it occurred. There was no evidence of other or further notice of any kind, until August 12, 1933, when plaintiff's counsel wrote defendant insurance company, giving notice that she had been injured July (August) 17, 1931, and that she claimed benefit under the total disability clause of her policy. The master policy was canceled May 27, 1932.

Voluntary nonsuit was taken as to the Highland Park Manufacturing Company.

Plaintiff offered evidence as to the manner of her injury and the extent of her disability thereafter.

At the conclusion of plaintiff's evidence, motion to nonsuit as to defendant insurance company was sustained, and from the judgment thereon plaintiff appealed.

Ralph V. Kidd and John M. Robinson, both of Charlotte, for appellant.

Tillett, Tillett & Kennedy, of Charlotte, for Travelers Ins. Co.

DEVIN, Justice.

It is unnecessary to decide whether there was sufficient evidence to go to the jurythat plaintiff was wholly...