#### JOSEPH F. FORD v. NEW YORK LIFE INSURANCE COMPANY.

(Filed 14 October, 1942.)

Insurance §§ 34a, 34c—

In an action to recover total disability benefits under life insurance policies which provided that insured must be wholly disabled from engag*155ing in any occupation whatever for remuneration or profit, ancl such disability occurring before the anniversaries of the policies nearest plaintiff’s sixtieth birthday, a nonsuit was properly granted, the evidence showing that insured was gainfully employed in his profession for more than a year and a half after his sixtieth birthday.

Appeal by plaintiff from Sink, J.', at July Term, 1942, of BxjNCOmbe.

This is an action instituted to recover total disability benefits provided in three certain life insurance policies. On 14 December, 1923, 12 January, 1924, and 2 December, 1926, tbe defendant issued to tbe plaintiff life insurance policies in tbe sums of $1,000.00, $1,000.00, and $2,000.00 respectively, in wbicb tbe wife of tbe insured was made beneficiary, and tbe policiés are still in effect, all premiums due tbereon having been duly paid. Each policy contains a total and permanent disability provision, together with a clause waiving premiums in tbe event of tbe described disability. Tbe disability clause is substantially tbe same in tbe three policies, and is as follows:

“1. Disability shall be deemed to be total whenever tbe insured is wholly disabled by bodily injury or disease so that be is prevented thereby from engaging in any occupation whatsoever for remuneration or-profit. ...

“3. Upon receipt at tbe Company’s Home Office before default in payment of premium, of due proof that tbe insured is totally and presumably permanently disabled and that such disability occurred after tbe insurance under this policy took effect and before its anniversary on wbicb tbe insured’s age at nearest birthday is sixty years, tbe following benefits will be granted: (a) Tbe company will pay to tbe insured a monthly income of $10 per $1000 of the face of tbe policy during bis lifetime and continued disability. . . . (b) Tbe company will waive payment of any premium falling due after approval of said proof and during such disability.”

Notice of claim was duly filed by tbe plaintiff with tbe defendant in August, 1941, and suit was instituted in December, 1941.

At the close thereof tbe court sustained tbe defendant’s demurrer to tbe evidence and entered a judgment as in case of nonsuit,.C. S., 567, to wbicb ruling and judgment tbe plaintiff preserved exception and appealed.

,/. G. Merrimon and H. Kenneth Lee for plaintiff, appellant.

Johnson <fi TJzzell for defendant, appellee.

Schenck, J.

This ease poses tbe question: Was there sufficient evidence to be submitted to tbe jury upon tbe issue as to whether tbe plaintiff became totally and permanently disabled within tbe meaning -of tbe *156disability clause in tbe policies in suit before tbe anniversaries of tbe policies nearest tbe plaintiff’s sixtieth birthday, namely, 28 October, 1939 — that is, prior to 2 December, 1939, 14 December, 1939, and 12 January, 1940, respectively? We are constrained to answer in tbe negative.

Tbe plaintiff’s evidence, including bis own testimony, was to tbe effect that be bad practiced law continuously since 1905, and since that time be bad bad no other vocation, and that be continued to practice law until 1 June, 1941; that as a member of a firm be divided tbe fees thereof on a fifty per cent basis until tbe last mentioned date; that be received a net income from tbe practice of law alone for tbe year 1938 of $1,009.73, and for tbe year 1939 of $1,452.37, and for tbe year 1940 of $1,450.23; that early in 1941 plaintiff instituted suit against "William Dudley Pelley for fees in tbe amount of $1,775.00 due him for professional services rendered — tbe plaintiff himself testifying that these services continued until October or November, 1940.

On tbe other band, tbe plaintiff’s evidence tended to show that be became ill in 1937, and was ill continuously from then until tbe present •time, but that be was not advised as to tbe permanency of bis illness until July or August, 1941; that be bad cirrhosis of tbe liver, an incurable malady, which weakened bis mental as well as bis physical powers, and “be was quite a chronically ill man,” and in tbe opinion of medical experts be was unable in 1937, 1938, 1939, and 1940, “to do and to perform tbe necessary acts in tbe practice of tbe profession of law with reasonable continuity or regularity”; that while be continued to go-to bis office tbe duties be performed there were limited in their scope, and that many of tbe legal documents be undertook to prepare bad to be revised or rewritten by other members of bis firm.

Notwithstanding tbe apparent conflicts in tbe evidence, it appears beyond question that tbe plaintiff reached tbe age of sixty years on 28 October, 1939, and that thereafter be continued to engage in tbe practice of law until 1 June, 1941, and actually received a substantial net income therefrom during bis sixty-first year. These uncon-troverted facts, appearing from bis own testimony, prevent tbe plaintiff from coming within tbe provisions in tbe policies that tbe disability must occur before tbe anniversary of tbe policy nearest tbe insured’s sixtieth birthday to entitle him to tbe disability benefits. Such facts, irrespective of some conflicts in tbe evidence as to other facts, bar as a matter of law any recovery by tbe plaintiff upon tbe policies in suit. It is not “so nominated in tbe bond.” It is ours to interpret tbe policies as written, and not to rewrite them.

Tbe case is governed by Thigpen v. Ins. Co., 204 N. C., 551, 168 S. E., 845, where tbe action was bottomed upon a similar clause in an insur-*157anee policy after tbe death of the insured. It is there written: “The ultimate question is whether the infirmities and disabilities of the insured wholly prevented him 'from pursuing any occupation, whatsoever for remuneration or profit/ Must such a question be submitted to a jury, or upon admitted facts, is it a question of law for the court? Ordinarily, such questions must be submitted to a jury, but in the case at bar it is admitted that from January until June, a few days prior to his death, the insured received $40.00 per month as compensation for his services as court crier for the county court of Pitt County. It is true that physicians and many other prominent citizens of the community testified that the insured was neither physically nor mentally capable of discharging such duties. Nevertheless it is beyond question that the services of the court crier were satisfactory to the public authorities, because they actually paid him his monthly stipend of $40.00. The law is designed to be a practical science, and it would seem manifest that a plain, everyday fact, uncontroverted and established, ought not to be overthrown by the vagaries of opinion or by scientific speculation.”

Again it is said in Medlin v. Ins. Co., 220 N. C., 334, 17 S. E. (2d), 463: “This Court has frequently construed total and permanent disability clauses in life insurance policies to mean that the insured cannot recover disability benefits if he is able to engage with reasonable continuity in his usual occupátion or in any occupation that he is physically and mentally qualified to perform substantially the reasonable and essential duties incident thereto. This rule of law has been given application to the extent of denying benefits to an insured who, though suffering from a severe disability, continues to work at a gainful occupation.”

See, also, the recently decided case of Jenhins v. Ins. Co., ante, 83, wherein Winborne, J., collects the authorities.

Upon a consideration of the entire record, the Court is of the opinion that the trial judge ruled correctly.

Affirmed.