Mertens v. Provident Mutual Life Insurance, 216 N.C. 741 (1940)

Jan. 3, 1940 · Supreme Court of North Carolina

216 N.C. 741

ARTHUR V. MERTENS v. PROVIDENT MUTUAL LIFE INSURANCE COMPANY OF PHILADELPHIA.

(Filed 3 January, 1940.)

Insurance § 34c—

Evidence that insured worked continuously as a bookkeeper at a salary of $1,800 per year until he was over sixty-seven years of age, though enfeebled by physical infirmities and lessening eyesight, is held sufficient to sustain insurer’s motion to nonsuit in an action on a clause in a life policy providing for benefits if insured should become disabled prior to his sixty-fifth birthday.

Appeal by plaintiff from Ervin, Special Judge, at June Term, 1939, of Forsyth.

Affirmed.

This was an action to recover for total and permanent disability under policy of insurance issued by defendant. Disability was defined in the policy as follows: “Disability caused by bodily injury or disease, which wholly prevents the insured, and presumably will for life continuously and permanently wholly prevent him from engaging in any business or occupation or performing any work for compensation, gain or profit.”

At the close of plaintiff’s evidence, motion for judgment of nonsuit was allowed, and plaintiff appealed.

Winfield Blackwell and Vaughn & Graham for plaintiff, appellant.

Manly, Hendren & Womble and I. E. Carlyle for defendant, appellee.

Per Curiam.

Under the terms of the policy, the disability for which claim is made must have been sustained before the insured became sixty-five years of age. He reached that age 23 July, 1934. He alleged total and permanent disability prior to that date. The evidence disclosed that he worked continuously as a bookkeeper at a salary of $1,800 per year until May, 1937, though enfeebled by physical infirmity and lessening eyesight.

The ruling of the court below in sustaining the motion for nonsuit must be upheld and the judgment dismissing the action

Affirmed.