Johnson v. Missouri State Life Insurance ( 1935 )

CLARKSON, J., dissents. Civil action to recover on a $1,000 certificate of group insurance issued by defendant to plaintiff, an employee of the B. C. Remedy Company and/or Five Points Drug Company of Durham, N.C.

The certificate in suit contains the following provision:

"If the employee shall furnish the company with due proof that, before having attained the age of sixty years, he or she has become totally and permanently disabled by bodily injury or disease, and that he or she is then, and will be at all times thereafter, wholly prevented thereby from engaging in any gainful occupation, and that he or she has been so permanently and totally disabled for a period of six months, the company will immediately pay to the employee in full settlement of all obligations hereunder, the amount of insurance in force hereunder on the employee at the time of the approval by the company of the proofs as aforesaid."

Plaintiff's total disability began on 1 January, 1931, when he left the employ of the Five Points Drug Company. His brother continued to pay his premiums until 1 March, 1931, when the insurance coverage was canceled, as no further premiums were paid to continue it in force after that date.

Suit was instituted 1 March, 1933.

From a judgment of nonsuit the plaintiff appeals, assigning error. Must the plaintiff's total and permanent disability have existed for a period of six months before liability attaches therefor under the certificate in suit? The answer is, Yes. Kingsland v. Ins. Co. (Mo.),66 S.W.2d 959; Baker v. Ins. Co., 202 N.C. 432, 163 S.E. 110.

The same question in principle was presented in the case of Hundley v.Ins. Co., 205 N.C. 780, 172 S.E. 361, where Brogden, J., delivering the opinion of the Court, observed: "It is not deemed relevant to discuss the meaning of the six months' clause or for what reason it was inserted in the contract. It is there in plain English." See, also, Wyche v. Ins. Co.,ante, 45, 175 S.E. 697; Ammons v. Assur. Society, 205 N.C. 23,169 S.E. 807.

The evidence rendered it proper to dismiss the action as in case of nonsuit.

Affirmed.

CLARKSON, J., dissents.