Harrison v. Nationwide Mutual Insurance , 21 N.C. App. 290 ( 1974 )

PARKER, Judge.

By this appeal plaintiff brings forward but one assignment of error, that the court erred in refusing to grant her motion to set aside the verdict on the second issue on the grounds that the same was contrary to law and to the greater weight of the evidence. Such a motion is addressed to the sound discretion of the trial judge, whose ruling, in the absence of abuse of discretion, is not reviewable on appeal. Glen Forest Corp. v. Bensch, 9 N.C. App. 587, 176 S.E. 2d 851. No abuse of discretion is shown on the present record.

Prior to her injury plaintiff had been employed as a cook and as a waitress, occupations requiring prolonged standing or walking. She testified she had no training for any other type of work, and her evidence showed that the serious and painful injury to her right knee prevented her from engaging in any occupation which required that she be on her feet for extended periods of time. Defendant recognized her disability and made indemnity payments for the period of more than eighteen months following her injury. For the first fifty-two weeks of this period, defendant’s policy required it to make indemnity payments to plaintiff if her disability prevented her from performing every duty pertaining to her occupation. Thereafter, and as applicable in this litigation, the policy provided that disability “shall be deemed total disability only if it shall continuously prevent the Insured from engaging in any occupation or employment for wage or profit.” (Emphasis added.)

Plaintiff testified that her only claim for disability in this action was because of the injury to her knee, and her own doctor testified that she “should be able to do any type of work which does not require prolonged standing or walking.” From this and other testimony the jury could legitimately find that during the period involved in this litigation plaintiff was physically and mentally qualified to engage in occupations at which she could earn wages comparable to the wages she had previously received as a waitress and as a cook. The question was one for the jury to decide under proper instructions from the judge. Bulluck v. Insurance Co., 200 N.C. 642, 158 S.E. 185. No exception was taken to the court’s charge to the jury, which is not in the record on this appeal. It is presumed that the court correctly instructed the jury on every principle of law applicable to the facts of this case. Long v. Honeycutt, 268 N.C. 33, 149 S.E. 2d 579.

In denying plaintiff’s motion to set aside the verdict on the second issue, the trial court committed

No error.

Judges Britt and Morris concur.