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

• Decision Date: 26 September 1941
• Docket Number: 96.
• Parties: EDWARDS v. NATIONAL COUNCIL, JUNIOR ORDER UNITED AMERICAN MECHANICS, BENEFICIARY DEGREE.
• Court: North Carolina Supreme Court

16 S.E.2d 466

220 N.C. 41

EDWARDS v. NATIONAL COUNCIL, JUNIOR ORDER UNITED AMERICAN MECHANICS, BENEFICIARY DEGREE.

No. 96.

Supreme Court of North Carolina

September 26, 1941

The plaintiff brought this action against defendant on a Certificate No. 103156 of insurance, and endowment at age 70 issued by National Council, Junior Order United American Mechanics of the United States of North America, Beneficiary Degree, to Willie S. Edwards of Magnolia Council No. 421 dated November 1, 1935, which provides, inter alia, as follows: "If the member shall furnish to the Order due and satisfactory proof that he has become Totally and Permanently Disabled by bodily injury or disease, from a cause originating after membership of one full year, and the payment of a full year's rate, and prior to the attainment of the age of seventy (70) years, 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, and that such disability has then existed continuously for not less than ninety days, the Order will pay to the member $2,000.00 (Two thousand dollars) upon surrender of this Certificate properly receipted."

The defendant, after denying the material allegations of the complaint, for a further answer and defense says: "That the defendant denies any liability or responsibility whatever for that proof of total and permanent disability has not been furnished as required by the contract between plaintiff and defendant and until that is done there is no liability whatever on the defendant; that the plaintiff has not followed the contract as to the proof of total and permanent disability and the defendant is justified in refusing payment not only on that ground but upon the further ground that the plaintiff is not totally and permanently disabled."

The plaintiff testified, in part: "I was born and reared at the same place I now live in Coopers Township. I am 34 years old. Up to the time I was hurt on October 12, 1938, I was engaged in farming, doing everything that came into hand mauled, sawed, cut and hauled wood, plowed tobacco, set tobacco, picked cotton. I farmed myself and lived with my father. After I got married I took my wife there and have been living there ever since. I am not equipped mentally and physically to do any kind of work other than farming when I was able to farm. My education was very limited. I finished the fifth grade. I have not specialized in any branch of work other than farming. I am married and have one child. I am a member of The Junior Order United American Mechanics, Magnolia Council No. 421, Nashville R. F. D. I joined 12 or 14 years ago and am a paid-up member, active in the lodge. I have paid every premium on my certificate of insurance since it was issued up to now. The night of the 12th of October, 1938, myself and four others were headed to Henderson with a load of tobacco on a trailer when a wheel run off and we were out fixing the wheel. I pulled across from the hard surface and a negro came along and ran over us and killed one man with us and put three others besides myself in the hospital. It broke my back in three places, fractured my skull and hurt my ankle and wrist and different little things. I was knocked out for nine days. I was picked up by an ambulance from Louisburg and carried to Park View Hospital; stayed there 23 days, carried home on an ambulance and carried backward and forth to the hospital to be examined and dressing my head and later when I quit going to the hospital, Dr. Wheeless, from Spring Hope, would go back and forth to my home and dress my head. I wore a cast ten and a half months and it was taken off and I wore a wide belt, 10 or 12 inches, and still do. Depends on my back, how stiff it gets, and if I do a little walking and my back gets sore, I wear it a day or two and pull it off. I wore a solid cast from my shoulders down across my legs below my waist line across my hips for ten and one-half months. During the time I was wearing the cast I filed a claim with the defendant for the benefits provided in this policy, but I did not get paid. This scar on the side of my face and head came from the injury. I will put my finger inside the dent. The left side of my head is just a little flat. I have severe headaches in that side of the head. It starts as near around about that sunken place as I can tell and goes around that left eye. I have it usually two or three times a week and have to sleep it off. Since my injury I cannot bend over halfway. To get something on the floor I have to squat down or get down on my knees; I can't bend over. I have shortness of breath, get awfully weak or tired if I do much walking or any unnecessary trying to get around. I have not been able to do any work on the farm since I was injured October 12, 1938. I have tried to do work and can't do it. I was examined lately by Dr. A. L. Daughtridge of the Sanitorium in Rocky Mount. I filed proof of claim on blank sent me by the company four or five months after I was injured. 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 walk or stand on my feet about an hour at the time. I do not very often spend any time in bed resting. Sometime, I will, but hardly ever. (Cross-examination.) My father and I operate the farm we live on and have been operating it regularly. I operated it this year. Last year I hired a colored boy to do it. I look after it. My father runs a store. I took in from the farm in 1940 five or six hundred dollars. I got a living off of it but I didn't pay expenses. I told the jury that I had never engaged in any occupation in my life, except farming. I worked at the Farmers Warehouse in Henderson that year I got hurt. Because I was employed there, not as a farmer but working at that warehouse for $100.00 a month. *** At the time I was working for the warehouse, I hauled tobacco. I did not get a commission for drumming; the warehouse paid me by the month. I don't know whether they put me on a salary because I got to making so much commission or not. I went out and got the tobacco if I could, got the load of tobacco and hauled it to the warehouse. *** The warehouse did not pay a hundred dollars for hauling tobacco. When the farmers carried their own tobacco they didn't pay me but if I carried it they did. The warehouse paid me by the month. I don't know whether you call it a hundred dollars a month for drumming or hauling. I wasn't able to work there last year, so I didn't ask for the job back. *** That I was employed solely for the purpose of soliciting or drumming business to get the farmer to take it there. *** The Fall I got hurt I drummed tobacco and hauled it to the warehouse. Before I got hurt I made a living and made a little money, about like the average farmer. I now have a boy hired to work on the farm. I can tell him some things to do. My back is pretty weak when I walk and stand much at the time. I can't walk over plowed ground. Since I got hurt my father has given me practically all I made. Before I was hurt I farmed on halves with him. I am getting it all now except what I give the fellow and the expenses."

The issues submitted to the jury, and their answers thereto, were as follows:

"1. 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? Answer: Yes.

"2. 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...