{ "id": 8549898, "name": "ERNEST M. TAYLOR v. BANKERS LIFE AND CASUALTY COMPANY", "name_abbreviation": "Taylor v. Bankers Life & Casualty Co.", "decision_date": "1972-05-24", "docket_number": "No. 7226SC73", "first_page": "418", "last_page": "422", "citations": [ { "type": "official", "cite": "14 N.C. App. 418" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "168 S.E. 845", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1933, "opinion_index": 0 }, { "cite": "204 N.C. 551", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621865 ], "year": 1933, "opinion_index": 0, "case_paths": [ "/nc/204/0551-01" ] }, { "cite": "100 S.E. 2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "247 N.C. 135", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625704 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/247/0135-01" ] }, { "cite": "22 S.E. 2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "opinion_index": 0 }, { "cite": "222 N.C. 154", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629117 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/nc/222/0154-01" ] }, { "cite": "182 S.E. 106", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1935, "opinion_index": 0 }, { "cite": "208 N.C. 665", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614238 ], "year": 1935, "opinion_index": 0, "case_paths": [ "/nc/208/0665-01" ] }, { "cite": "175 S.E. 175", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "opinion_index": 0 }, { "cite": "206 N.C. 848", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8633213 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/nc/206/0848-01" ] }, { "cite": "108 S.E. 2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "250 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624444 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/nc/250/0476-01" ] } ], "analysis": { "cardinality": 447, "char_count": 8644, "ocr_confidence": 0.519, "pagerank": { "raw": 2.701012047527744e-07, "percentile": 0.8284168304793059 }, "sha256": "d8fd8997891e8d2ce60e9f0939466877573c2a954ef4bcb5e14e67c6d95a7199", "simhash": "1:1d33533928293d21", "word_count": 1414 }, "last_updated": "2023-07-14T22:58:48.650385+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Britt and Graham concur." ], "parties": [ "ERNEST M. TAYLOR v. BANKERS LIFE AND CASUALTY COMPANY" ], "opinions": [ { "text": "CAMPBELL, Judge.\nThe sole question presented by this appeal is whether it was error to grant defendant\u2019s motion for judgment notwithstanding the verdict.\nThe evidence in this case may be summarized as follows:\nIn June of 1967 the plaintiff was, and had been for approximately ten years, an employee of Ryder Truck Rentals. At that time he was employed as the service manager. In June 1967 the plaintiff suffered a heart attack. He was out of work for a period of several months following the heart attack. Although the record is somewhat confusing on this point, it appears that plaintiff- returned to work in the Fall of 1967. He did not return to the position of service manager because that job required him to do mechanical repairs and it was felt that the job was too strenuous for plaintiff. He was instead given the newly created job of tire manager. His duties in this capacity required him to keep and file mileage records and inventories on the tires, insure that tires were sent to the recapping shop and returned, and purchase new tires. An assistant was assigned to plaintiff to lift tires and perform any physical labor required in managing the tire service. The plaintiff testified, however, that even with the assistant he sometimes had to lift tires to inspect them. He also testified that at times he was required to walk to the back lot of Ryder\u2019s facilities, a distance of approximately 150 yards.\nOn October 15, 1967, the plaintiff became an insured on a certificate of insurance under an income protection policy issued by the defendant to the Ryder System, Inc. The policy provided for payment of indemnity when,\n\u201c ... as the result of sickness, the Insured Individual is wholly and continuously disabled and prevented from performing each and every duty of his occupation . \u201d (emphasis added).\nCoverage for an insured under the policy was to terminate on the date the insured\u2019s employment terminated.\nAfter returning to work plaintiff continued to suffer chest pains associated with angina pectoris. He was placed on medication for these pains.\nIn March 1968, plaintiff underwent a surgical procedure to improve circulation to his heart and hopefully alleviate the chest pains he was suffering. He returned to work in June 1968. He continued to perform his duties as tire manager until 9 September 1968. On that date plaintiff\u2019s employment was terminated for cause. The specified cause for his discharge was his failure to keep proper inventories and violation of other company procedures. There was no evidence that plaintiff was unable to or was prevented by Ms heart condition from performing his duties. The evidence was that he did in fact perform all his duties until the date of his discharge. He thereafter sought employment as a mechanic but was unsuccessful.\nPlaintiff testified that he has suffered chest pains since the date of his heart attack and that he continues to suffer such pains. He testified that he frequently experienced chest pains during his last year of employment with Ryder.\nThe plaintiff presented the expert testimony of two physicians, Dr. L. E. Brittain and Dr. Harry K. Daugherty. Both experts testified that in their opinion the plaintiff was wholly disabled and prevented from performing each and every duty of his occupation. On cross-examination, however, Dr. Brittain testified that he would not say that plaintiff was unable to answer the phone or maintain tire inventories and that if plaintiff was satisfactorily performing his duties it was evidence that he was able to do so. On cross-examination Dr. Daugherty testified that his opinion that plaintiff was unable to do each and every duty of his occupation was based on an understanding that plaintiff was doing heavy physical labor. He testified that plaintiff was able to answer the telephone and maintain tire records. Dr. Daugherty testified that the fact that plaintiff was actually performing his duties spoke for itself.\nThe case was submitted to the jury on the following stipulated issue:\n\u201cWas the plaintiff wholly and continuously disabled and prevented from performing each and every duty of his occupation on the 9th day of September, 1968, as alleged in the Complaint?\u201d\nThe jury answered this issue in favor of the plaintiff. Defendant then moved for judgment notwithstanding the verdict and the motion was allowed.\nThe motion for judgment notwithstanding the verdict brings into question the sufficiency of the evidence upon which the jury based its verdict.\nA review of the evidence in this case reveals that the policy under which plaintiff was insured required that he be, \u201cprevented from performing each and every duty of his occupation.\u201d His occupation at the time of his discharge was that of tire programmer or tire service manager. There was testimony that plaintiff suffered chest pains while at work and there was testimony by two physicians that in their opinion plaintiff was disabled.\nThere was, however, uncontroverted evidence that the plaintiff was in fact performing his duties up until the date of discharge. Furthermore, the plaintiff\u2019s experts testified that plaintiff was not prevented from keeping the records on the tires and answering the telephone.\nThe experts also testified on cross-examination that the fact plaintiff was performing his duties was evidence that he was able to do so. They therefore negated to an extent their testimony on direct examination. Andrews v. Assurance Society, 250 N.C. 476, 108 S.E. 2d 921 (1959).\nThe insurance policy limits recovery to those who are prevented from performing \u201ceach and every duty\u201d of their occupation. There is no construction of the evidence in this case which would permit a jury to find that plaintiff\u2019s heart disease prevented him from performing \u201ceach and every duty\u201d of his job. In fact the evidence leads us to the conclusion that plaintiff was performing all or substantially all of the duties of his occupation. Recovery under the policy cannot be allowed under these facts.\nThere is a strong line of cases in North Carolina holding that where a plaintiff is actually working and performing his duties, he is not entitled to benefits under disability insurance and this applies even where there is expert testimony to the \u00abeffect that plaintiff is disabled. Boozer v. Assurance Society, 206 N.C. 848, 175 S.E. 175 (1934); Carter v. Insurance Co., 208 N.C. 665, 182 S.E. 106 (1935); Ford v. Insurance Co., 222 N.C. 154, 22 S.E. 2d 235 (1942); Fair v. Assurance Society, 247 N.C. 135, 100 S.E. 2d 373 (1957).\n\u201c[I]t would seem manifest that a plain, everyday fact, uncontroverted and established, ought not to be overthrown by the vagarties of opinion or by scientific speculation.\u201d Thigpen v. Insurance Co., 204 N.C. 551, 168 S.E. 845 (1933).\nThe above cited decisions are controlling in the case at bar.\nThe trial court was correct in granting defendant\u2019s motion for judgment notwithstanding the verdict.\nAffirmed.\nJudges Britt and Graham concur.", "type": "majority", "author": "CAMPBELL, Judge." } ], "attorneys": [ "Sanders, Walker & London by James E. Walker; and Edward T. Cook for plaintiff appellant.", "Craigkill, Rendleman & Clarkson by J. B. Craighill for defendant appellee." ], "corrections": "", "head_matter": "ERNEST M. TAYLOR v. BANKERS LIFE AND CASUALTY COMPANY\nNo. 7226SC73\n(Filed 24 May 1972)\nInsurance \u00a7 44\u2014 disability insurance \u2014 inability to perform duties of occupation\u2014 insufficiency of evidence\nThe evidence was insufficient to support a jury finding that plaintiff\u2019s heart disease prevented him \u201cfrom performing each and every duty of his occupation\u201d within the meaning of a disability insurance policy, where it showed that after plaintiff suffered a heart attack he was given the job of tire service manager, that plaintiff suffered chest pains while at work but was not prevented from keeping tire records and answering the telephone, that the specified cause of plaintiff\u2019s discharge was his failure to keep proper inventories and violation of other company procedures, and that plaintiff was in fact performing all or substantially all of the duties of his job at the time of his discharge.\nAppeal by plaintiff from Snepp, Judge, at the 14 June 1971 Schedule \u201cB\u201d Session of Mecklenburg Superior Court.\nThis civil action was instituted by plaintiff to recover benefits allegedly due under an insurance policy issued by the defendant.\nThe case was tried before a jury. The defendant moved for a directed verdict at the close of the plaintiff\u2019s evidence and at the close of all the evidence. The jury returned a verdict in favor of the plaintiff. The defendant moved for judgment notwithstanding the verdict and the motion was granted.\nFrom this judgment, plaintiff appeals.\nThe facts are set out in the opinion.\nSanders, Walker & London by James E. Walker; and Edward T. Cook for plaintiff appellant.\nCraigkill, Rendleman & Clarkson by J. B. Craighill for defendant appellee." }, "file_name": "0418-01", "first_page_order": 444, "last_page_order": 448 }