Hendrix v. All American Life and Cas. Co.

• Decision Date: 08 January 1980
• Docket Number: No. 7923SC363,7923SC363
• Citation: 261 S.E.2d 270,44 N.C.App. 464
• Court: North Carolina Court of Appeals
• Parties: Harley H. HENDRIX v. ALL AMERICAN LIFE AND CASUALTY COMPANY.

Page 270

261 S.E.2d 270

44 N.C.App. 464

Harley H. HENDRIX v. ALL AMERICAN LIFE AND CASUALTY COMPANY.

No. 7923SC363.

Court of Appeals of North Carolina.

Jan. 8, 1980.

Vannoy, Moore & Colvard by J. Gary Vannoy, North Wilkesboro, and Gregory & Joyce by Dennis R. Joyce, Wilkesboro, for plaintiff-appellee.

McElwee, Hall, McElwee & Cannon by William C. Warden Jr., North Wilkesboro, for defendant-appellant.

HARRY C. MARTIN, Judge.

Defendant argues on appeal, Inter alia, that the trial court erred in failing to instruct the jury that plaintiff's disabling condition must be one that has lasted or would last twenty-four months under the terms of the policy. Defendant's basic position is that as a matter of law plaintiff failed to prove total disability under the policy. We hold defendant is precluded from raising this objection on appeal.

After a lengthy conference prior to oral argument, the trial court formulated the issue: "Was the Plaintiff, Harley Hendrix, completely and continuously disabled so that he was unable to engage in his regular occupation from March 1976 through March 1977?" Immediately following in the record is the statement, "The Defendant did not tender a different issue to the Court." Later in the record, under the caption "Omitted Instruction" appears the following:

The trial Court should have instructed the jury substantially as follows:

"Ladies and gentlemen of the jury, the policy defines disability as 'the complete inability of the insured to engage in his regular occupation, business or profession for 24 months.' Therefore, the Plaintiff must prove to you by the greater weight of the evidence that the Plaintiff's condition disabling him was a condition that had lasted or would last for 24 months and prevent him from engaging in his regular occupation for 24 months."

The record before us does not show that defendant requested such instruction to be included in the charge. Requests for special instructions must be submitted in writing to the judge prior to the charge to the jury. Written requests for special instructions are to be filed as a part of the record. N.C.Gen.Stat. 1A-1, Rule 51(b). It is incumbent upon the party desiring a more thorough or detailed charge to request it. Prevette v. Bullis, 12 N.C.App. 552, 183 S.E.2d 810 (1971). In the absence of such a request, an assignment of error based on the failure of the court to instruct in a particular manner is untenable. Woods v. Roadway Express, Inc., and Swann v. Roadway Express, Inc., 223 N.C. 269, 25 S.E.2d 856 (1943). This assignment of error is overruled.

In arguing that in order for plaintiff to recover under the insurance policy he must prove a disabling condition that had lasted or would last for twenty-four months, defendant in effect is attempting to urge this Court to recognize an issue different from that submitted to the jury by Judge Rousseau. Defendant cannot succeed in this effort. A party who is dissatisfied with the form of the issues or who desires an additional issue should raise the question at once, by objecting or by presenting the additional issue. If a party consents to the issues submitted, or does not object at the time or ask for a different or an additional issue, he cannot make the objection later on appeal. Baker v. Construction Corp., 255 N.C. 302, 121 S.E.2d 731 (1961); 1 McIntosh, North Carolina Practice and Procedure (2d ed. 1956), § 1353. Because defendant neither objected to the issue submitted to the jury nor asked for a different issue, as the record unequivocally reveals, it cannot do so on this appeal.

Two of defendant's remaining assignments of error relate to evidentiary matters. On cross-examination of plaintiff and on direct examination of one of its own witnesses, defendant attempted to put into evidence the fact that plaintiff had been dismissed from his job by his employer in August 1975. Similarly, defendant tried to elicit from plaintiff on cross-examination testimony that plaintiff had initiated a...