Hendrix v. ALL AMERICAN LIFE & CAS. CO. , 44 N.C. App. 513 ( 1980 )

261 S.E.2d 270 (1980) 44 N.C. App. 513

Harley H. HENDRIX
v.
ALL AMERICAN LIFE AND CASUALTY COMPANY.

No. 7923SC363.

Court of Appeals of North Carolina.

January 8, 1980.

Vannoy, Moore & Colvard by J. Gary Vannoy, North Wilkesboro, and Gregory & Joyce by Dennis R. Joyce, Wilkesboro, for plaintiff-appellee.

McElwee, Hall, McElwee & Cannon by William C. Warden Jr., North Wilkesboro, for defendant-appellant.

HARRY C. MARTIN, Judge.

Defendant argues on appeal, inter alia, that the trial court erred in failing to instruct the jury that plaintiff's disabling condition must be one that has lasted or would last twenty-four months under the terms of the policy. Defendant's basic position is that as a matter of law plaintiff failed to prove total disability under the policy. We hold defendant is precluded from raising this objection on appeal.

After a lengthy conference prior to oral argument, the trial court formulated the issue: "Was the Plaintiff, Harley Hendrix, completely and continuously disabled so that he was unable to engage in his regular occupation from March 1976 through March 1977?" Immediately following in the record is the statement, "The Defendant did not tender a different issue to the Court." Later in the record, under the caption "Omitted Instruction" appears the following:

The trial Court should have instructed the jury substantially as follows:

"Ladies and gentlemen of the jury, the policy defines disability as ``the complete inability of the insured to engage in his regular occupation, business or profession for 24 months.' Therefore, the Plaintiff must prove to you by the greater weight of the evidence that the Plaintiff's condition disabling him was a condition that had lasted or would last for 24 months and prevent him from engaging in his regular occupation for 24 months."

The record before us does not show that defendant requested such instruction to be included in the charge. Requests for special instructions must be submitted in writing to the judge prior to the charge to the jury. Written requests for special instructions are to be filed as a part of the record. N.C.Gen.Stat. 1A-1, Rule 51(b). It is incumbent upon the party desiring a more thorough or detailed charge to request it. Prevette v. Bullis, 12 N.C.App. 552, 183 S.E.2d 810 (1971). In the absence of such a request, an assignment of error based on the failure of the court to instruct in a particular manner is untenable. Woods v. Roadway Express, Inc., and Swann v. Roadway Express, Inc., 223 N.C. 269, 25 S.E.2d 856 (1943). This assignment of error is overruled.

In arguing that in order for plaintiff to recover under the insurance policy he must prove a disabling condition that had lasted or would last for twenty-four months, defendant in effect is attempting to urge this Court to recognize an issue different from that submitted to the jury by Judge Rousseau. Defendant cannot succeed in this effort. A party who is dissatisfied with the form of the issues or who desires an additional issue should raise the question at once, by objecting or by presenting the additional issue. If a party consents to the issues submitted, or does not object at the time or ask for a different or an additional issue, he cannot make the objection later on appeal. Baker v. Construction Corp., 255 N.C. 302, 121 S.E.2d 731 (1961); 1 McIntosh, North Carolina Practice and Procedure (2d ed. 1956), § 1353. Because defendant neither objected to the issue submitted to the jury nor asked for a different issue, as the record unequivocally reveals, it cannot do so on this appeal.

Two of defendant's remaining assignments of error relate to evidentiary matters. On cross-examination of plaintiff and on direct examination of one of its own witnesses, defendant attempted to put into evidence the fact that plaintiff had been dismissed from his job by his employer in August 1975. Similarly, defendant tried to elicit from plaintiff on cross-examination testimony that plaintiff had initiated a lawsuit against his former employer, alleging that through the summer of 1975 he was a "dutiful employee and performed valuable services." Defendant argues that the court erred in refusing to allow this evidence. We disagree. In light of the fact that the sole issue presented to the jury was whether plaintiff was completely and continuously disabled from March 1976 through March 1977, we think evidence of plaintiff's discharge in August 1975 and of an allegation in a lawsuit that plaintiff was a good employee through the summer of 1975 was properly excluded from the jury by the trial judge. This evidence was not relevant to the issue in dispute. There is only a remote or conjectural connection between the evidence excluded and the fact to be proved by it. 1 Stansbury's N.C. Evidence (Brandis rev. 1973), § 78.

Defendant also assigns as error the court's overruling its objection to a question asked of plaintiff's witness, Dr. John Bond, by plaintiff. The question was whether, in Bond's opinion, plaintiff was able to engage in any occupation, business or profession during the period from 16 March 1976 to 16 March 1977. Dr. Bond's answer was no. Defendant argues that the doctor's opinion as to any occupation was irrelevant and prejudicial to defendant, as the policy defines disability in terms of plaintiff's "regular occupation."

The record shows that immediately before Dr. Bond was asked this question, he was asked whether, in his opinion, plaintiff could have "engaged in his regular occupation, business or profession during the period of time from March 16, 1976, until March 16, 1977?" Defendant did not object to this question. After Dr. Bond answered no, he was then asked the question objected to.

We disagree with defendant's argument that the only purpose for the question was to "create sympathy" in the jurors' minds. We agree with plaintiff's contention that evidence that Hendrix was unable to engage in any occupation is, a fortiori, evidence that he could not engage in his regular occupation. Therefore, the evidence is relevant.

Defendant's final assignment of error is directed toward the court's overruling his motions for directed verdict and judgment notwithstanding the verdict. Defendant insists that in order for plaintiff to take his case to the jury, he must have presented sufficient evidence of his disability to show that he was or would be prevented from working at his regular occupation for twenty-four months. However, because we have held there was no error in the submission to the jury of the sole issue whether plaintiff was disabled only from March 1976 to March 1977, we find no merit in defendant's position.

Defendant was afforded a jury trial, and the jury decided in favor of plaintiff. In the trial we find

No error.

VAUGHN and WEBB, JJ., concur.