Evans v. TRANSPORTATION INSURANCE COMPANY

152 S.E.2d 82 (1967) 269 N.C. 271

Guy C. EVANS
v.
TRANSPORTATION INSURANCE COMPANY.

No. 112.

Supreme Court of North Carolina.

January 20, 1967.

M. E. Cavendish, Greenville, for plaintiff.

Rodman & Rodman, Washington, for defendant.

SHARP, Justice.

Defendant concedes that plaintiff was totally and continuously disabled during the period in question and that he was under the regular care of a duly qualified physician. This appeal presents only the question whether, within the meaning of the policy, plaintiff's disability necessarily and continuously confined him within the house.

Except where the contract of insurance specifically defines policy requirements of continuous confinement withindoors, as in Walsh v. United Insurance Co., 265 N.C. 634, 144 S.E.2d 817, this Court has treated such provisions as descriptive of the extent of the illness or injury rather than as a limitation upon insured's conduct. Glenn v. Gate City Life Insurance 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 Association, 209 N.C. 678, 184 S.E. 695; Hines v. New England Casualty Co., 172 N.C. 225, 90 S.E. 131, L.R.A.1917B, 744. So long as the insured left his home only to visit his physician, to take walks ordered by his doctor, or for some other purpose which does not negate the seriousness of his illness and the totality of his disability, this Court has interpreted continuous confinement clauses liberally in favor of the insured and has allowed "reasonable deviation from the indoors requirement." Suits v. Old Equity Life Insurance Co., 249 N.C. 383, 106 S.E.2d 579.

In Suits, the plaintiff, a paraplegic as a result of an automobile accident, was totally disabled and deprived of his earning capacity. He lived at home and was entirely dependent upon his father and mother, not only for his livelihood but also for his bodily needs. Notwithstanding, after attending a rehabilitation center, he was able to operate a specially equipped automobile and, with the use of crutches, braces, and specially fitted shoes, to walk short distances. During 1955-1957, he was enrolled at the University of North Carolina, and, three days a week, he drove to Chapel Hill, a distance of 35 miles from his home. In 1957, he received his M.A. degree in English. He also drove himself to church (where he taught a Sunday-school class), to the barbershop, to the doctor's office, and to nearby towns. Prior to the time that the plaintiff enrolled at the University of North Carolina, the defendant insurance company had paid him monthly benefits under a policy providing for such payments so long as injury or sickness confined him continuously withindoors. Thereafter, the defendant declined to make further payments, and the plaintiff brought suit. In holding that the plaintiff's activities away from home had been "too extensive and too regularly carried on for too long a time" to permit him to qualify under the continuous confinement clause, Higgins, J., speaking for the Court, said:

"It (the confinement clause) is an integral part of the contract [which] 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.

"* * * 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." Id. at 386, 106 S.E.2d at 582.

In Suits, the insurance policy made no attempt to define continuous confinement withindoors. The policy in the instant case likewise attempts no definition other than to provide that "confinement shall not be terminated by reason of the transportation of the insured, at the direction of his doctor, to or from a hospital or a doctor's office for necessary treatment." This provision merely implanted previous rulings of this Court into the policy. Duke v. General Accident, Fire & Life Assurance Corp., supra; Thompson v. Mutual Ben. Health & Accident Association, supra. Plaintiff's activities, however, have been so extensive and so prolonged that his case is governed by Suits v. Old Equity Life Insurance Co., supra.

Defendant's contract with plaintiff does not obligate it to pay him $300.00 unless he is totally disabled and continuously confined to the house. For total disability and nonconfinement, defendant agreed to pay only $150.00 a month for a maximum of three months. Defendant is, therefore, obligated to pay plaintiff only under policy provision IV-B. "A bona fide, legally sufficient tender by a debtor, even though refused by the creditor, does not operate to discharge or extinguish the principal debt or obligation. * * *" 52 Am.Jur., Tender § 35 (1944). Accord, Parker v. Beasley, 116 N.C. 1, 21 S.E. 955, 33 L.R.A. 231.

Plaintiff's claim for a refund of premiums paid in 1962 and 1963 is governed by the following provision of the policy:

"WAIVER OF PREMIUM—Upon due proof that total disability for which indemnity is payable under this policy has continued for six months while this policy is in force, the Company will waive the payment of any premium becoming due during any further continuous period of disability for which indemnity is payable and the policy will remain in force during such further period, subject to all its conditions except as to the payment of premium."

Plaintiff's heart attack occurred on May 4, 1962. The next premium became due November 1, 1962—three days before the expiration of the six months' waiting period. His continuous confinement had been terminated when the next premium became due on November 1, 1963. Plaintiff, therefore, is not entitled to a refund of premiums paid.

The judgment of nonsuit must be

Affirmed.