Civil
action to recover $1,000 alleged to be due plaintiff as
beneficiary in a certain policy of insurance which was issued
to James E. Felts by the defendant, May 13, 1938.
Plaintiff
alleges that James E. Felts died on the 22nd day of July
1939, and that from and after January 18, 1939, he was wholly
and permanently disabled from performing any work or
transacting any business; and further alleges that after the
insured became permanently disabled to engage in any kind of
work and before the annual premium for the year 1939 was due
notice of said disability was given to T. H. Settle
defendant's local agent, who resides in North Wilkesboro
Wilkes County, N. C.
The
defendant alleges and contends that, under the terms of the
policy issued to the insured, it was incumbent upon the
insured, or his representative, to give due notice to the
home office of the defendant of such disability and to make
satisfactory proof thereof on forms which would be furnished
by defendant on request of insured, and that said written
forms were to be submitted within one year from the beginning
of the total disability, provided such disability had
continued for a period of not less than six consecutive
months. Defendant further contends the policy lapsed for
failure of the insured to pay the annual premium of $38.83 on
May 13, 1939.
It was
admitted by plaintiff that the insured did not pay the second
annual premium alleged to be due on the policy, May 13, 1939.
The
plaintiff and defendant offered evidence at the trial below.
The
following issues were submitted to the jury:
"1.
Did the defendant execute to James E. Felts the policy of
insurance as described in plaintiff's complaint? Answer:
Yes.
"2.
Was James E. Felts, the insured, permanently, continuously
and wholly disabled by disease from pursuing any occupation
for compensation or profit from January 18, 1939, until July
22, 1939? Answer: Yes.
"3.
Was James E. Felts, the insured, totally incapacitated from
giving notice to the defendant of his disability from July
18, 1939, to July 22, 1939? Answer: Yes.
"4.
What amount, if any, is the plaintiff entitled to recover of
the defendant? Answer: $1,000.00."
From
the judgment on verdict, defendant appealed to the Supreme
Court and assigns error.
Whicker
& Whicker, of North Wilkesboro, for plaintiff.
John R.
Jones, of North Wilkesboro, for defendant.
DENNY
Justice.
A copy
of the insurance policy issued to James E. Felts was
introduced in evidence at the trial below as well as
Supplemental Contract issued in connection with and
constituting a part of the Principal Contract.
We
think all the exceptions of the defendant can be disposed of
by a consideration of the pertinent parts of the insurance
contract, which appear in the Supplemental Contract, as
follows:
"Supplemental
Contract issued in connection with the Company's Policy
No. 125,659, on the life of James Evert Felts, which is the
Principal Contract.
"If
before default in the payment of any premium under the
Principal Contract and this Supplemental Contract, and before
the sum insured or any installment thereof becomes payable,
and prior to the anniversary date of the said Policy nearest
to the fifty-fifth birthday of the Insured, said Insured has
become physically and incurably disabled by disease or bodily
injury, occurring and originating after the date of this
Supplemental Contract or any reinstatement thereof, so that
the Insured is and will be permanently, continuously and
wholly prevented thereby from engaging in, participating in
or performing not only the usual occupations of the insured,
but also engaging in or participating in any other occupation
whatsoever, or from performing
work of any kind for compensation or profit of any kind
whatsoever, and will be disabled for life, and satisfactory
proof thereof, (on forms which will be furnished by the
Company on request), is submitted within one year from the
beginning of the total disability, provided such disability
has existed continuously for not less than six consecutive
months, (Total Disability of Such Duration Being Deemed to Be
Permanent Only for the Purpose of Determining the
Commencement of Liability Hereunder) the company agrees,
subject to all conditions and limitations hereinafter
contained:
"To
waive the payment of each premium under said Policy and this
Supplemental Contract, beginning with the premium the due
date of which next succeeds the date of the receipt by the
Company of satisfactory proof that the Insured is totally and
permanently disabled.
"If
the Insured is physically able to perform some one or more of
the duties pertaining to his own, or to any other business,
occupation or work for compensation or profit, he shall not
be deemed totally disabled within the meaning and intent of
the provisions hereof.
"Proof
of claim, as outlined above, must be given to the Company
during the lifetime of the Insured and during the period of
disability, and is a condition precedent to the Insured being
entitled to the disability benefits. Insanity or other total
incapacity will not excuse the failure to file such proofs.
Failure to give such proof within the time provided in this
Supplemental Contract shall not invalidate any claim if it
shall be shown not to have been reasonably possible to give
such proof and that proof was furnished as soon as it was
reasonably possible.
"In
event any premium on the Principal Contract or on this
Supplemental Contract is in default not more than six months
before total and permanent disability is established and it
is shown that the disability began prior to the due date or
prior to the expiration of...
