Parker v. State Capital Life Ins. Co., 239
Decision Date | 20 March 1963 |
Docket Number | No. 239,239 |
Parties | William T. PARKER, Jr. v. STATE CAPITAL LIFE INSURANCE COMPANY. |
Court | North Carolina Supreme Court |
Berry & Browne, Charlotte, Allen & Steed, by Thomas W. Steed, Jr., Raleigh, for defendant, appellant.
Elbert E. Foster, Charlotte, for plaintiff, appellee.
The essential facts are not in dispute. The plaintiff contends the court's finding No. 6, unexcepted to, is conclusive, and establishes his right to recover under the policy. However, the defendant, at the conclusion of the plaintiff's evidence and again at the conclusion of all the evidence, moved for judgment of nonsuit. Exceptions to the refusal to nonsuit were taken and are assigned as error. Consequently, the question whether No. 6 is a finding of fact, a conclusion of law, or a combination of both, is immaterial. The sufficiency of all the evidence to support the judgment is challenged by the assignment of error. The ultimate and controlling facts not being in dispute, the construction of the policy becomes a matter of law.
The parties admit the plaintiff received an injury by accident on October 1, 1961. He received first aid treatment for burns on that date. Within two or three days there-after he developed pain over the kidney area. However, he did some work in his regular occupation as driver of the fire truck. The pain became more and more intense until on November 21, under his doctor's orders, he entered Mercy Hospital in Charlotte where, on December 4, Dr. Squires removed his right kidney.
Claims are provided for under 'SPECIAL INDEMNITY' provisions of the policy. The main coverage is for loss of life, one or both hands, one or both feet, the sight of one or both eyes, amputation of certain fingers on one or both hands. No. 3 provides for the indemnity for the expenses of hospital confinement. No. 6 provides for weekly income while in hospital for the period of such confinement. Both provisions require that the loss shall occur within 30 days from the date of the accident, and that the confinement must be continuous. Within 30 days from the time it happened, the accident must necessitate removal to and continuous confinement within an incorporated hospital. Actually the terms cover only what the victim of the accident does--not what he might have done.
All the evidence indicated, and the court found, the plaintiff did not enter the hospital until 51 days after the accident. Notwithstanding the doctor's testimony that claimant should have entered the hospital for treatment of his injury within the period of 30 days after he sustained his injury, nevertheless he delayed for 51 days. The insurance policy, by its plain and...
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