{ "id": 8625257, "name": "W. W. BULLUCK v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK", "name_abbreviation": "Bulluck v. Mutual Life Insurance", "decision_date": "1931-04-22", "docket_number": "", "first_page": "642", "last_page": "647", "citations": [ { "type": "official", "cite": "200 N.C. 642" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "278 Pac., 104", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 1999292 ], "opinion_index": 0, "case_paths": [ "/or/129/0485-01" ] }, { "cite": "203 N. W., 209", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "151 S. E., 67", "category": "reporters:state_regional", "reporter": "S.E.", "case_ids": [ 8715789 ], "opinion_index": 0, "case_paths": [ "/sc/153/0401-01" ] }, { "cite": "51 A. L. R., 1048", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "41 A. L. R., 1376", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "37 A. L. R., 151", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "24 A. L. R., 203", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "97 S. W., 240", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "198 N. C., 197", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602500 ], "opinion_index": 0, "case_paths": [ "/nc/198/0197-01" ] }, { "cite": "195 N. C., 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629188 ], "opinion_index": 0, "case_paths": [ "/nc/195/0332-01" ] }, { "cite": "195 N. C., 262", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628662 ], "opinion_index": 0, "case_paths": [ "/nc/195/0262-01" ] }, { "cite": "188 N. C., 538", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654387 ], "opinion_index": 0, "case_paths": [ "/nc/188/0538-01" ] }, { "cite": "172 N. C., 762", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11255481 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/172/0762-01" ] } ], "analysis": { "cardinality": 713, "char_count": 13138, "ocr_confidence": 0.469, "pagerank": { "raw": 8.030256604377848e-07, "percentile": 0.9737310939749769 }, "sha256": "5c5f82840c0badc42181ec37361e3632f286a10f0dcfdfd62ccbf8d0c63262fc", "simhash": "1:1ea546ea121cc489", "word_count": 2181 }, "last_updated": "2023-07-14T16:40:42.579520+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "W. W. BULLUCK v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK." ], "opinions": [ { "text": "BeoodeN, J.\nFive recent decisions of this Court discuss the liability of insurance companies to the assured resulting from permanent disability to engage in a \u201cgainful occupation,\u201d to wit: Buckner v. Ins. Co., 172 N. C., 762; Lee v. Ins. Co., 188 N. C., 538; Fields v. Assurance Co., 195 N. C., 262; Brinson v. Ins. Co., 195 N. C., 332; Metts v. Ins. Co., 198 N. C., 197. The Buckner case, supra, declared: \u201cThe authorities are practically unanimous that under the terms of this policy plaintiff cannot recover without showing a bodily injury that will incapacitate him not only from following his usual avocation of fireman, but also from pursuing any other gainful occupation. The language is too plain and the meaning too unmistakable to permit an enlargement of the terms of the contract by construction. It is unfortunate for the plaintiff, but \u201cit is so nominated in the bond.\u201d The defendant relies upon the Buckner case.\nThere is a sharp divergence among courts and text-writers in regard to the construction of clauses in insurance' policies dealing with such total or permanent disability as to render it impossible \u201cfor the insured to follow a gainful occupation.\u201d This divergence has produced two schools of thought upon the subject. The first school of thought adheres to a strict construction of such contracts, and the second school maintains a liberal construction thereof. The view of the liberal constructionist is well stated by the Missouri Court in Foglesong v. Modern Brotherhood, 97 S. W., 240. The pertinent clause in the policy of insurance under discussion provided for indemnity for \u201cpermanent and total disability . . . which renders him unable to carry on or conduct any vocation or calling.\u201d The Court said: \u201cCommon knowledge of the occupations in the lives of men and women teaches us that there is scarcely any kind of disability that prevents them from following-some vocation or other, except in cases of complete mental intertia. \"WV have examples of persons without hearing and without sight following a vocation \u2014 some without feet, and some without hands, engaged in business. The achievements of disabled persons are seemingly marvelous. Under defendant\u2019s theory, the plaintiff might embark in the peanut trade or follow the business of selling shoestrings or lead pencils, or follow some similar calling; in which instances, under the rule invoked, there would be no disability within the meaning of the policy. In our opinion, such was not within the contemplation of the parties.\u201d\nNorth Carolina has been classified in the decisions of various courts as adhering to the strictest construction of such contracts. This classification has resulted from the decision in Buckner v. Ins. Co., 172 N. C., 762, which has been cited in many jurisdictions. 24 A. L. R., 203; 37 A. L. R., 151; 41 A. L. R., 1376; 51 A. L. R., 1048; McCutchen v. Pacific Mutual Life Ins. Co., 151 S. E., 67.\nThe Buckner case was distinguished in the Brinson case, supra, in which latter case the Court said: \u201cThat in addition to his bodily injuries, resulting directly from the accident, plaintiff has suffered and is now suffering from a disease, which incapacitates him from pursuing not only his occupation as a farmer, but also any other gainful occupation, in which effort, either physical or mental is required.\u201d\nNone of the cited cases undertake to define the expression \u201cgainful occupation.\u201d The Supreme Court of Minnesota, in Carson v. N. Y. Life Ins. Co., 203 N. W., 209, discussed liability under a policy providing indemnity when the insured \u201chas become wholly disabled by bodily injury or disease so as he is and will be presumably thereby permanently and continuously prevented from engaging in any occupation whatever for remuneration or profit.\u201d Construing the meaning of the words used the Court said: \u201cIt must mean any occupation similar to that in which he had ordinarily been engaged or for which he may be capable of fitting himself within a reasonable time. If the disability prevents the insured from performing the essential parts of such an occupation with substantial continuity, it should entitle to the income payment promised.\u201d The Texas Court in Great Southern Life Ins. Co. v. Johnson, 25 Southwestern (2d), 1093, considered a policy of insurance providing indemnity if the disability resulted from bodily injury or disease \u201cso that he is and will be thereby permanently, continuously and wholly prevented from performing any work for compensation or profit or from following any gainful occupation.\u201d The Court said: \u201cThe term \u2018gainful occupation\u2019 is likewise a relative one; the insured\u2019s occupation and earning capacity at the time the policy issued was in contemplation of the parties \u2014 what would be a \u2018gainful occupation\u2019 for one may not be such for another. A prosperous merchant with a constantly expanding business, earning large and continually increasing profits, who because of injuries received is totally disabled from continuing that business, and it becomes bankrupt as a result, certainly cannot be said to pursue a \u2018gainful occupation,\u2019 compared to the other, if he is fortunate enough to earn something, though out of all proportion to what he had previously earned.\u201d Fagerlie v. N. Y. Life Ins. Co., 278 Pac., 104; Cooley\u2019s Briefs on Insurance, Vol. 6, 5533, et seq.j Couch \u2014 Cyclopaedia of Insurance Law, Vol. 7, section 1686, et seq.\nThe reasoning of the opinions seems to indicate that engaging in a gainful occupation is the ability of the insured to work with reasonable continuity in his usual occupation or in such an occupation as he is qualified physically and mentally, under all the circumstances, to perform substantially the reasonable and essential duties incident thereto. Hence, the ability to do odd jobs of comparatively trifling nature does not preclude recovery. Furthermore, our decisions and the decisions of courts generally, have established the principle that the jury, under proper instructions from the trial judge, must determine whether the insured has siiffered such total disability as to render it-\u201cimpossible to follow a gainful occupation.\u201d\nThe physicians both testified that in their opinion the disease from which plaintiff suffered would not result in permanent disability, and the defendant insists that, as the disease is uncommon, the nature and course of the malady lies exclusively in the field of expert and scientific knowledge. Hence, the testimony of the physicians should be accepted as conclusive upon such technical subject. Undoubtedly, this view of the law, in proper eases, would perhaps be sound and maintainable, but in the case at bar the paramount question was whether the plaintiff was able to engage in a gainful occupation. The ability of a party to perform physical or mental labor is not a question of such exclusively technical significance as to permit \u00e9xpert testimony to be given conclusive effect. Indeed, the identical question arose in Fields v. Assurance Co., supra, in wbicb tbe physician bad testified tbat tbe plaintiff was not in bis opinion permanently disabled. Moreover, there was a conflict between tbe testimony of physicians and tbe plaintiff with respect to permanent disability, and it has been tbe uniform policy of tbe law of this State, for many years, to submit conflicting evidence to tbe jury upon tbe theory tbat in tbe last analysis tbe jury is tbe weigh-master of tbe evidence.\nNo error.", "type": "majority", "author": "BeoodeN, J." } ], "attorneys": [ "T. T. Thorne and J. W. Grissom for plaintiff.", "Pou & Pou, Gilliam & Bond and Obwnor & Hill for defendant.", "Fredericlc L. Allen, General Counsel Mutual Life Insurance Company of New York, of counsel." ], "corrections": "", "head_matter": "W. W. BULLUCK v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK.\n(Filed 22 April, 1931.)\n1. Insurance It c \u2014 Ability to do odd jobs of comparatively trilling nature will not preclude recovery under disability clause.\nIn order for an insured to recover upon a disability clause in a policy of life insurance requiring that the insured be rendered incapable of following \u201ca gainful occupation\u201d in order to be entitled to payments thereunder, the insured must show more than inability to follow his usual avocation, and must show incapacity to follow any calling for which he is physically and mentally qualified, but ability to do odd jobs of com-XDaratively trifling nature will not preclude recovery, and the question of whether the insured has suffered such total disability is for the jury.\n2. Same \u2014 Expert testimony that claimant\u2019s disease would not result in total disability held not conclusive.\nTestimony of experts in an action to recover upon a disability clause in a life insurance policy that the disease with which the plaintiff was suffering would not result in total disability is not conclusive on the question of whether the plaintiff was able to follow a gainful occupation, and wliere there is evidence in behalf of the plaintiff that he was totally and permanently rendered incapable of engaging in gainful occupation the conflicting evidence is properly submitted to the jury under correct instructions from the court.\nCivil actioN, before Crapvm&r, J., at November Term, 1930, of Edgecombe.\nThe plaintiff alleged and offered evidence tending to show that the defendant issued and delivered to him two policies of life insurance, to wit, No. 3805892 and No. 3826994. The first policy was issued on 13 April, 1927, and the second policy on 14 June, 1927. It was admitted by the parties that all premiums had been paid on both of said policies and that proofs of claim in due form had been filed with defendant. The policies provided for certain benefits in the event of total and permanent disability before age 60. The pertinent clause is section 3 and is as follows: \u201cTotal Disability: Disability shall be considered total when there is any impairment of mind or body which continuously renders it impossible for the insured to follow a gainful occupation. Permanent Disability: Total disability shall, during its continuance, be presumed to be permanent; (a) If such disability is the result of conditions which render it reasonably certain that such disability will continue during the remaining lifetime of the insured; or, (b) If such disability has existed continuously for ninety days.\u201d\nIn the spring of 1928 the plaintiff suffered an attack of psoriasis. The medical testimony was to the effect that this disease \u201cis a chronic inflammatory condition of the skin with dried-in scales that look like mica. It has a tendency to appear on the back of the arms and on the front of the legs. Characteristically it gets better in summer and worse in winter. Itching is usually present, but in a light form.\u201d The physicians further testified that they had never seen a patient suffering with this disease get entirely well.\nPlaintiff testified that the disease had destroyed one toe nail and that it prevented him from sleeping. He said: \u201cIf you ever had your lips split open from cold weather, that is exactly how it feels. If the temperature is just right at night, I will go ahead and sleep all right. . . . I have to get up and change my temperature at night, use some salve and take a bath. Last night I got up half dozen times or more. ... I have lost twenty pounds since spring. ... I have not undertaken to run a farm since 1928. Prior to that time I did actual work when necessary. ... I couldn\u2019t do any kind of work \u2014 -am not physically able \u2014 couldn\u2019t hold out. I can drive an automobile a little while, but wouldnft undertake to drive from here to Raleigh. When I get jaded, it looks like everybody is going to run into me. ... I am unable to clerk in a store on account of my feet and toe nails. ... I don\u2019t know of any work or gainful occupation that I could follow. . . . My bair has started to come out. . . . When I scratch blood comes like a fly bite. ... I have not farmed any since as I have been unable. ... I know of no work I could do in my present physical and mental condition.\u201d Plaintiff offered other testimony tending to show that he was physically unable to engage in a gainful occupation.\nThere was evidence to the effect that the plaintiff assisted in selling Dust Down for boll weevils in the summer pf 1929. Plaintiff testified, \u201cI have earned less than $150 since the last day of March, 1929.\u201d\nTwo physicians, admitted to be medical experts, testified that in their opinion \u201cpsoriasis does not result in rendering a man unfit to carry on any gainful occupation.\u201d One of the physicians stated that \u201cat times it would make any gainful occupation physically painful.\u201d\nThe following issues were submitted to the jury:\n1. \u201cHas the plaintiff had any impairment of mind or body which continuously renders it impossible for him to follow a gainful occupation?\u201d\n2. \u201cIf so, is such disability permanent as defined in the policy?\u201d\nThe jury answered both issues \u201cYes,\u201d and judgment was entered upon\nthe verdict, from which judgment the defendant appealed.\nThe defendant in its brief states that the only question involved is \u201cwhether the plaintiff is entitled to receive the benefits under the terms of the policy?\u201d \u201cIf so, the amount of the judgment is correct.\u201d\nT. T. Thorne and J. W. Grissom for plaintiff.\nPou & Pou, Gilliam & Bond and Obwnor & Hill for defendant.\nFredericlc L. Allen, General Counsel Mutual Life Insurance Company of New York, of counsel." }, "file_name": "0642-01", "first_page_order": 710, "last_page_order": 715 }