#### ADDISON B. GUY v. ÆTNA LIFE INSURANCE COMPANY.

(Filed 28 February, 1934.)

1. Insurance R c — Evidence held sufficient to he submitted to jury in action on total and permanent disability clause in insurance policy.

Where plaintiff’s examination in chief and the testimony of other witnesses is sufficient to be submitted to the jury on the question of plaintiff’s total and permanent disability under the provisions 'of the policy in suit, testimony elicited from plaintiff on cross-examination that he was able to direct his business for compensation and profit during the alleged disability does not justify a judgment as of nonsuit.

*1192. Appeal and Error A f—

On plaintiff’s appeal from a judgment as of nonsuit defendant, asking no affirmative relief, may not test tire competency of a witness’s testimony should the nonsuit be reversed, by also appealing from tbe judgment, defendant not being tbe “party aggrieved.” C. S., 632.

Appeals by plaintiff and defendant from Frizzells, J., at February Term, 1933, of HarNEtt.

Civil action to recover on a total and permanent disability clause in a policy of life insurance.

On 1 November, 1919, tbe defendant issued to tbe plaintiff a life insurance policy containing, inter alia, tbe following provisions:

“Six months after proof is received at tbe borne office of tbe company, tbat from causes originating after tbe delivery of tbis policy the insured has become wholly, continuously and permanently disabled and will for life be unable to perform any work or conduct any business for compensation or profit, if all premiums previously due hereon have been paid, tbe company will waive tbe payment of all premiums falling due thereafter under tbis policy during such disability.

“Also six months after such proof of disability occurring before tbe insured reaches tbe age of sixty is received, tbe company will pay to tbe insured a sum equal to tbe monthly installment provided on tbe first page hereof to be paid at tbe death of tbe insured and will pay tbe same amount on tbe same day of every month thereafter during tbe lifetime and during tbe permanent total disability of tbe insured.”

Defendant admits tbat all premiums have been paid on said policy, and tbat tbe same was in full force and effect at tbe time total and permanent disability is alleged to have occurred.

Plaintiff’s evidence tends to show tbat be is 59 years of age, a farmer by occupation, and has not been able to perform any of bis duties as a farmer since September, 1931; tbat on 30 January, 1932, be furnished tbe defendant with proof of bis disability, and tbat payment under tbe policy was declined.

Dr. A. T. Wyatt testified tbat be examined tbe plaintiff in May, 1932, and discovered tbat be bad arthritis of tbe spine, from which be suffered great x>ain; tbat in bis ojfinion tbe plaintiff will never get any better, but continue to grow worse, and tbat be will be totally and permanently disabled for life; tbat tbis condition existed at tbe date of bis examination, and bad existed for a year or two, or probably longer.

Tbe defendant elicited on cross-examination of tbe plaintiff, and some of bis witnesses, evidence to tbe effect tbat tbe plaintiff was able to direct bis business of farming for compensation or profit during tbe year 1932, and upon tbis testimony, judgment of nonsuit was entered.

Both plaintiff and defendant appeal, assigning errors.

*120 Neill McK. Salmon and Dupree & Strichland for plaintiff.

Murray Allen for defendant.

Stacy, C. J.

Tbe evidence adduced on the plaintiff’s examination in chief, and the testimony of his other witnesses, was sufficient to carry the case to the jury.on the issue of plaintiff’s alleged total and permanent disability within the meaning of the policy in suit. Mitchell v. Assurance Society, 205 N. C., 721; Misskelley v. Ins. Co., 205 N. C., 496, 171 S. E., 862; Green v. Casualty Co., 203 N. C., 767, 167 S. E., 38; Bulluck v. Ins. Co., 200 N. C., 642, 158 S. E., 185. Compare Thigpen v. Ins. Co., 204 N. C., 551, 168 S. E., 837; Buckner v. Ins. Co., 172 N. C., 762.

The defendant, realizing the force and effect of Dr. Wyatt’s testimony, also appeals and in this way seeks to test the competency of his evidence, should the judgment of nonsuit be reversed, citing as authority for the position Hunt v. R. R., 203 N. C., 106, 164 S. E., 626. But a defendant, who asks for no affirmative relief, is not the “party aggrieved” by a judgment of nonsuit within the meaning of C. S., 632. McCullock v. R. R., 146 N. C., 316, 59 S. E., 882. Nor does Hunt’s case decide otherwise.

Plaintiff’s appeal, reversed.

Defendant’s appeal, dismissed.