Raburn v. Pa. Cas. Co

• Decision Date: 16 May 1906
• Parties: RABURN. v. PENNSYLVANIA CASUALTY CO.
• Court: North Carolina Supreme Court

54 S.E. 283

141 N.C. 425

RABURN.

v.PENNSYLVANIA CASUALTY CO.

Supreme Court of North Carolina.

May 16, 1906.

1. Insurance—Accident Policy—Total Disability.

Under an accident policy by which a person whose occupation was described as a section foreman on track work was insured for the sum of $5 per week for a period not exceeding 104 weeks, during which, by reason of injuries caused by accident, he should be "wholly and continuously disabled from transacting any and every kind of business pertaining to his occupation, " the insured was not entitled to recover for a period of time during which, though disabled by an injury from performing some of the manual labor connected with his occupation, he was employed in the same capacity as he had been before the injury, with the same number of men under him, and at the same salary.

2. Damages—Accident Insurance — Amount Recoverable.

In an action on an accident policy providing for the payment of a certain indemnity weekly, insured cannot recover for weekly payments not due when the action was commenced, but which became due thereafter.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Damages, § 339.]

Appeal from Superior Court, Rutherford County; Councill, Judge.

Action by S. C. Raburn against the Pennsylvania Casualty Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

See 50 S. E. 762.

This was an action upon a policy Issued by defendant to the plaintiff, the material parts of which are as follows: "In consideration of the agreements herein * * * and the payment of an annual premium of $10, the Pennsylvania Casualty Company * * * does now agree to pay to Stephen S. Raburn * * * by occupation a section foreman on track work, for bodily injuries caused by external, violent, and accidental means, which wholly, Immediately, and continuously disable the assured from transacting any and every kind of business pertaining to his occupation $5 per week for a period not to exceed 104 weeks." The application is dated October 21, 1901, the policy October 23, 1901. Plaintiff alleged that on the 27th day of October, 1901, while driving in a buggy, he sustained an injury dislocating his right shoulder; that he received assistance from several physicians none of them giving him relief until the 22d of February, 1902, when his shoulder was replaced; that he could not at the time of the trial use his shoulder and arm "to any advantage"; that he could not do the work he was performing at the time he was hurt. He further testified: "Have been engaged in my work for six years. I was section foreman at the time policy was applied for, and am now occupying the same position. I worked from one to six men. Was allowed three men at the time I applied for policy, and I was being paid $38 a month salary for that work. I am now getting the same salary of $38 per month as section foreman. I went back to my work and occupation as section foreman on the 24th day of March, 1902, at the same salary I was getting at the time I was hurt, and at the same salary that I am now receiving, and with the same force of hands, three in number, that I had before I was injured; my crew consisted of three hands on October 26, 1901 and it consisted of three hands on March 24, 1902. I was hurt on Sunday, October 27, 1901." He described the manner in which he sustained the injury, as follows: "Was driving along in a buggy, was going to church, wheel ran off, horse was frightened, " etc. The defendant admitted that application was made on October 21st, for the policy, and alleged that on the 23d day of October it forwarded to its agent the policy set out in the complaint, with instructions to collect the premium due thereon, and deliver the policy to plaintiff; that on the 30th day of October, 1901, said agent collected the premium and delivered the policy; that said policy provided that it could not take effect unless the premium was actually paid previous to any accident under which the claim was made. Plaintiff put in evidence the policy with the application and testified as herein set forth. Defendant introduced no testimony, but demurred to the plaintiff's evidence, and moved for judgment of nonsuit, which was denied, and defendant excepted. Defendant tendered the following issues: "(1) Was the policy delivered prior to the accident alleged in the complaint? (2) Was the premium on the policy paid prior to the accident alleged in the complaint?" His honor declined to submit these issues, and defendant excepted. His honor thereupon submitted the following issues: "(1) Was the plaintiff injured by accident as alleged in the complaint? Ans. Yes. (2) Was plaintiff's policy of insurance in force at the time of such injury? Ans. Yes. (3) Did the injury sustained by plaintiff wholly, immediately, and continuously disable him from transacting any and every kind of business pertaining to his occupa tion? Ans. Yes. (4) How long did such disability continue? Ans. 104 weeks. (5) What amount, if anything, is plaintiff entitled to recover of defendant? Ans. $520." Defendant requested the court to charge the jury as follows: "(1) That the payment of the premium being a condition precedent to the validity of the policy, it was incumbent upon the plaintiff to prove payment of the premium prior to the accident or injury alleged in the complaint, and the plaintiff having failed to prove the payment of the premium prior to the accidental injury alleged in the complaint, is not entitled to recover. (2) That the policy introduced in evidence failed to recite a receipt of the premium, and further containing a clause stipulating that the policy shall not be enforced as to any accident occurring prior to the payment of the premium, it was necessary for plaintiff to prove a payment of the premium prior to the accident alleged before he can recover, and if the jury should find from the evidence that there is no evidence of the payment of the premium prior to the date of the accidental injury complained of, the jury shall find in favor of the defendant and answer the issue as to whether the defendant is liable to the plaintiff, 'No.' (3) That if the jury should find from the evidence that the accidental injury alleged in the complaint occurred on the 27th day of October, 1901, then the plaintiff cannot recover in this action, and the jury should answer the issues as to the liability of the defendant to plaintiff, in behalf of the defendant. (4) That if the jury should find from the evidence that the plaintiff was injured by accidental means on October 27, 1901, and that as a result of said accidental injury plaintiff was wholly, immediately and continuously disabled from transacting any and every kind of business pertaining to his occupation only until the 25th day of March, 1902, then the jury should find that the disability continued for a period of 21 weeks, and should answer the issue submitted in accordance with said finding. * * * (10) That if the jury should find from the evidence that the plaintiff was wholly, immediately and continuously disabled for a longer period of time than 21 weeks; and if the jury should find further from the evidence that this suit was instituted on October 23, 1902, then the jury is instructed that plaintiff, having elected to bring his suit at that time, any contract plaintiff had with defendant terminated on said date, and plaintiff could not recover for longer time than the 23d of October, 1902. (11) That the payment of the premium prior to the accident being a condition precedent to the validity of the policy, the burden was upon the plaintiff to prove or show to the satisfaction of the jury that he had complied with this condition precedent and paid the premium prior to the accident: and if the jury should find from the evidence that theplaintiff has not proved payment of the premium prior to the accident then plaintiff is not entitled to recover, and the jury should answer the issues in favor of defendant." Plaintiff submitted other requests not necessary to set out. His honor gave the fourth instruction without alteration—declined the others. Defendant excepted. His honor instructed the jury that if they believed the evidence they should answer the first issue, "Yes, " otherwise, "No, " to which defendant excepted. Upon the second issue his honor instructed the jury that if they believed the plaintiff's evidence that the policy offered in evidence was delivered by him to defendant, that such delivery was conclusive proof that the contract was complete, and was an acknowledgement by the defendant that the premium was properly paid during good health of plaintiff, and they should answer the issue, "Yes, " otherwise, "No." To this defendant excepted. The third issue was answered by consent. Upon the fourth issue his honor charged the jury as follows: "That the plaintiff is only entitled to recover for such period of time as he was wholly, immediately, and continuously disabled from performing the substantial part of his duty pertaining to this occupation, not exceeding the period, however, of 104 weeks"; and further charged: "If you find that the plaintiff has been prevented from performing such duty pertaining to his occupation from the 27th October until the present time, then you will answer this issue 104 weeks, which is the time stipulated in the policy. If, however, you find that plaintiff has been able to perform the substantial part of the duties pertaining to his occupation...