Ford v. New York Life Ins. Co.

• Decision Date: 14 October 1942
• Docket Number: 101.
• Citation: 22 S.E.2d 235,222 N.C. 154
• Parties: FORD v. NEW YORK LIFE INS. CO.
• Court: North Carolina Supreme Court

22 S.E.2d 235

222 N.C. 154

FORD v. NEW YORK LIFE INS. CO.

No. 101.

Supreme Court of North Carolina

October 14, 1942

This is an action instituted to recover total disability benefits provided in three certain life insurance policies. On December 14, 1923, January 12, 1924, and December 2, 1926 the defendant issued to the plaintiff life insurance policies in the sums of $1,000, $1,000, and $2,000 respectively, in which the wife of the insured was made beneficiary, and the policies are still in effect, all premiums due thereon having been duly paid. Each policy contains a total and permanent disability provision, together with a clause waiving premiums in the event of the described disability. The disability clause is substantially the same in the three policies, and is as follows:

"1. Disability shall be deemed to be total whenever the insured is wholly disabled by bodily injury or disease so that he is prevented thereby from engaging in any occupation whatsoever for remuneration or profit. ***

"3. Upon receipt at the Company's Home Office before default in payment of premium, of due proof that the insured is totally and presumably permanently disabled and that such disability occurred after the insurance under this policy took effect and before its anniversary on which the insured's age at nearest birthday is sixty years, the following benefits will be granted: (a) The company will pay to the insured a monthly income of $10 per $1000 of the face of the policy during his life time and continued disability. *** (b) The company will waive payment of any premium falling due after approval of said proof and during such disability."

Notice of claim was duly filed by the plaintiff with the defendant in August, 1941, and suit was instituted in December 1941.

At the close thereof the Court sustained the defendant's demurrer to the evidence and entered a judgment as in case of nonsuit, C.S. § 567, to which ruling and judgment the plaintiff preserved exception and appealed.

J G. Merrimon and H. Kenneth Lee, both of Asheville, for appellant.

Johnson & Uzzell, of Asheville, for appellee.

SCHENCK Justice.

This case poses the question: Was there sufficient evidence to be submitted to the jury upon the issue as to whether the plaintiff became totally and permanently disabled within the meaning of the disability clause in the policies in suit before the anniversaries of the policies nearest the plaintiff's sixtieth birthday, namely, October 28, 1939,-- that is prior to December 2, 1939, December 14, 1939, and January 12, 1940, respectively. We are constrained to answer in the negative.

The plaintiff's evidence, including his own testimony, was to the effect that he had practiced law continuously since 1905 and since that time he had had no other vocation, and that he continued to practice law until June 1, 1941; that as a member of a firm he divided the fees thereof on a fifty per cent basis until the last mentioned date; that he received a net income from the practice of law alone for the year 1938 of $1,009.73, and for the year 1939 of $1,452.37, and for the year 1940 of $1,450.23; that early in 1941 plaintiff instituted suit against William Dudley Pelley for fees in the amount of $1,775 due him for professional services...