The evidence on this appeal fails to show that plaintiff filed proof of total and permanent disability while the policy of insurance was effective, and lacks sufficient excuse for such failure. The judgment as of nonsuit must be
Affirmed.
Whitman v. Pilot Life Insurance, 216 N.C. 742 (1940)
Jan. 3, 1940
·
Supreme Court of North Carolina
216 N.C. 742
ROBAH JAMES WHITMAN and Wife, NELLIE VIOLA WHITMAN, v. PILOT LIFE INSURANCE COMPANY.
(Filed 3 January, 1940.)
Insurance § 34b—
Insured’s evidence tliat lie became disabled prior to tbe due date of a certain premium and failed to pay same or any subsequent premium, but that he failed to give notice of such disability until more than two years thereafter because he thought his disability temporary and not permanent, fails to disclose proof of disability during the life of the policy as required by the disability clause, or sufficient excuse for failure to give such notice, and insured’s action on the disability clause was properly nonsuited.
Appeal by plaintiff from Johnston, Special Judge, at May Term, 1939, of Forsyth.
Civil action for recovery of benefits under disability provision in policy of life insurance.
On 15 September, 1925, defendant issued a policy of insurance upon the life of plaintiff, Eobah James Whitman, for two thousand dollars, in which his wife, Nellie Yiola Whitman, was named as beneficiary. This *743policy contained a provision for payment of benefits for total and permanent disability as therein defined, and for waiver of premiums during such disability, “upon receipt and approval of proof satisfactory to the company, while this policy is in full force and effect . . .” Evidence for plaintiff tends to show that the premium due 15 September, 1936, was not paid, nor was any premium thereafter paid; that plaintiff filed with defendant proof of disability in January, 1939, and that while he was disabled prior to 15 September, 1936, he thought it temporary, and he did not then know, and did not discover until December, 1938, that his disability was total and permanent.
At the close of plaintiff’s evidence the court granted motion for judgment as in case of nonsuit. Plaintiff appeals therefrom to Supreme Court and assigns error.
Fred M. Parrish for plaintiff, appellant.
Smith, Wharton & Hudgins, Manly, Hendren & Womble, and I. E. Carlyle for defendant, appellee.