Jackson v. Hodges, 232 N.C. 694 (1950)

Nov. 22, 1950 · Supreme Court of North Carolina

232 N.C. 694

W. C. JACKSON v. WILLIAM P. HODGES, Ins. Comr., et al.

(Filed 22 November, 1950.)

1. Insurance § 34a—

Plaintiff’s testimony that be bad been totally and permanently disabled by bodily injury or disease, with testimony of bis physician that defendant by reason of illness was permanently, continuously, and wholly prevented from doing any work whatsoever for compensation, gain, or profit, or from following any gainful occupation, is held sufficient to be submitted to the jury in an action on a disability clause in a certificate of insurance notwithstanding defendant’s evidence to the contrary and contradictions and discrepancies in the testimony of plaintiff’s own witnesses.

2. Trial § 22b—

Defendant’s evidence in conflict with that of plaintiff is not to be considered on motion to nonsuit.

3. Trial § 22c—

Discrepancies and contradictions, even in plaintiff’s evidence, do not justify nonsuit.

Appeal by plaintiff from Williams, J., February Term, 1950, of Waice.

Civil action instituted before justice of tbe peace on 29 Marcb, 1947, to recover $190.05 alleged to be due under insurance contract.

There was a judgment for tbe plaintiff in tbe justice’s court, and on appeal to tbe Superior Court, judgment as in case of nonsuit was entered at tbe close of plaintiff’s evidence.

Plaintiff appeals.

8am J. Moms for plaintiff, appellant.

Allen Langston for defendant, appellee, Jr. O. O. A. M.

Stacy, C. J.

Tbe plaintiff undoubtedly suffered an adverse judgment in tbe Superior Court because no clear, succinct statement of tbe facts was made in tbat court, as none appears on tbe record bere. And we may add tbat neither brief contains such a statement.

Eepeated perusals of tbe record reveal these central facts :

1. Tbe contract of insurance is admitted. It was issued to plaintiff by tbe defendant on 31 Marcb, 1932.

2. Sick benefits for total and permanent disability were paid thereunder for four years beginning in 1937.

3. Payments were then stopped or suspended and additional proof of disability required.

4. Additional proof was furnished and payments were resumed for a period of four months. (Dates not ascertainable from tbe record.)

5. Payments were again stopped or suspended and additional proof of disability demanded. These were furnished, but payments were not resumed. (Dates not ascertainable from record.)

6. This suit was instituted 29 March, 1947, for 13 months’ sick benefit, arrearage and certain premiums.

7. Tbe only question debated on tbe bearing and bere was and is tbe plaintiff “totally and permanently disabled by bodily injury or disease, so tbat be is and will be permanently, continuously and wholly prevented thereby from performing any work whatsoever for compensation, gain or profit, or from following any gainful occupation,” in tbe language of tbe certificate of insurance? If tbis be answered in tbe affirmative, liability is conceded.

Tbe plaintiff testified tbat be bad been totally and permanently disabled from bodily injury or disease for 10 or 12 years, and bis doctor testified: “In my opinion, be was at tbat time (January 1941), by reason of bis illness, permanently, continuously and wholly prevented from doing any work whatsoever for compensation, gain or profit, or from following any gainful occupation.”

Tbis evidence suffices to carry tbe case to tbe jury. True, there is other evidence tending to show tbe plaintiff’s disability was neither total nor permanent, some from his own witnesses, but on demurrer, tbis is not to be considered. Howard v. Bell, ante, 611; Graham v. Gas Co., 231 N.C. 680. Discrepancies and contradictions, even in plaintiff’s evidence, are for tbe twelve and not for tbe court. Williams v. Kirkman, ante, 609; Bailey v. Michael, 231 N.C. 404, 57 S.E. 2d 372; Barlow v. Bus Lines, 229 N.C. 382, 49 S.E. 2d 793.

Reversed.