Suits v. Old Equity Life Insurance Company , 249 N.C. 383 ( 1959 )

106 S.E.2d 579 (1959) 249 N.C. 383

Harold SUITS
v.
OLD EQUITY LIFE INSURANCE COMPANY.

No. 601.

Supreme Court of North Carolina.

January 14, 1959.

McLendon, Brim, Holderness & Brooks, by: G. Neil Daniels, Hubert Humphrey, Greensboro, for defendant, appellant.

Smith, Moore, Smith, Schell & Hunter, by: Bynum M. Hunter, Greensboro, for plaintiff, appellee.

HIGGINS, Justice.

The defendant has abandoned all assignments of error except No. 9 which presents the question whether the plaintiff's evidence, in the light most favorable to him, was sufficient to qualify him for further benefits under Part H of his policy. The question is one of law. Ward v. Smith, 223 N.C. 141, 25 S.E.2d 463. The policy issued to the plaintiff by the defendant company is designated "Lifetime Income Protection Policy." Part A provides for loss or, under certain conditions, the loss of use of members of the body. The defendant has paid the maximum benefits for the loss of both feet. Part H provides for confining disability benefits. Part I provides for nonconfining benefits. Other parts of the policy provide for additional benefits not material here. Part H only is involved.

The courts of the several states are not in agreement in their interpretation of policy provisions similar to Part H. Some courts adhere to the rule of literal construction, even of the indoors provision. MacFarlane v. Pacific Mutual Life Ins. Co., 7 Cir., 192 F.2d 193, 29 A.L.R.2d 1403, certiorari denied 343 U.S. 915, 72 S.Ct. 648, 96 L.Ed. 1330; Reeves v. Midland Casualty Co., 170 Wis. 370, 174 N.W. 475. Others, among them our own, adhere to a more liberal interpretation, treating the "continuously confined withindoors" provision as descriptive of the extent of the illness or injury, and at the same time allowing reasonable deviation from the indoors requirement. Glenn v. Gate City Life Ins. Co., 220 N.C. 672, 18 S.E.2d 113; Duke v. General Accident Fire & Life Assurance Corp., 212 N.C. 682, 194 S.E. 91; Thompson v. Mutual Ben. Health & Accident Ass'n, 209 N.C. 678, 184 S.E. 695; Wade v. Mutual Benefit Health & Accident Ass'n, 115 W.Va. 694, 177 S.E. 611; Mutual Benefit Health & Accident Ass'n v. McDonald, 73 Colo. 308, 215 P. 135. Under Part I the parties provide benefits for nonconfining injury which resulted in total disability and total loss of time. The difference in the provisions is this: Part I eliminates the confining requirement present in Part H.

In order, therefore, to qualify for benefits under the confining disability clause, it is not enough for the policyholder to show regular treatment by a qualified physician or surgeon for a totally disabling injury resulting in total loss of time. In addition, the evidence must be such as will permit the reasonable inference under our liberal construction rule that the injury "confines the insured continuously withindoors" during the period for which the benefits are claimed. The plaintiff's evidence met all except the last requirement. The showing of total disability and total loss of time are not enough to make out a case if we give any effect to the confinement provision. If the decisions in Massachusetts Bonding & Ins. Co. v. Springston, Okl., 283 P.2d 819; Mutual Benefit Health & Accident Ass'n v. Murphy, 209 Ark. 945, 193 S.W.2d 305; and Occidental Life Ins. Co. of California v. Sammons, 224 Ark. 31, 271 S.W.2d 922, have the effect of removing the confinement provision, we are unable to follow them. It is an integral part of the contract the parties made. We cannot revise it. When competent parties contract at arms length upon a lawful subject, as to them the contract is the law of their case. Muse v. Metropolitan Life Ins. Co., 193 La. 605, 192 So. 72, 125 A.L.R. 1075.

It is the purpose and intent of this Court to give a liberal construction in favor of the plaintiff to the continuous confinement withindoors provision of the policy, but we cannot strike it out. The outside activities of the insured in the Glenn, the Duke, and the Thompson cases above referred to were restricted in time, scope, and field, too much so to bear any true resemblance to those carried on by the plaintiff or to constitute a precedent in his favor.

A reading of the record in this case excites admiration for the plaintiff's fortitude and indomitable will. However, giving provision H of his policy liberal interpretation in his favor, and strict interpretation against the insurer, as is our rule in construing contracts of insurance, we reluctantly conclude the plaintiff's activities away from home have been too extensive and too regularly carried on for too long a time to permit him to qualify for benefits under the questioned provision of the policy. The plaintiff's evidence offered at the trial (and only briefly summarized in the factual statement) was not sufficient to bring the plaintiff within the coverage of Part H. The defendant's assignment of error No. 9 is sustained. The court should have allowed the defendant's motion for involuntary nonsuit.

Reversed.