#### MRS. ETHEL GREGORY v. TRAVELERS INSURANCE COMPANY.

(Filed 5 May, 1943.)

1. Trial § 22b: Appeal and Error § 40e—

In considering a motion for nonsuit after all the evidence of both sides has been heard, the defendant’s evidence unless favorable to the plaintiff, is not to be taken into consideration, except when not in conflict with plaintiff’s evidence, it may be used to explain or make clear that which has been offered by plaintiff.

2. Insurance § 32c—

Where, under the terms of the insurance contract sued on, insurance on life of insured ceased when his employment by the Johnston Manufacturing Company terminated, with proviso that if, at such termination, insured was wholly disabled and prevented by disease from engaging in employment for wage or profit, the insurance would remain in force, and the evidence of plaintiff, beneficiary in the policy, tended to show that insured was regularly engaged for wages in the same occupation, with reasonable continuity, for a considerable period of time, after the termination of the service in which he was insured and to within a few days of his death, defendant’s motion for nonsuit at close of all the evidence was properly allowed.

Sea well, J., concurring in result.

Appeal by plaintiff from *W article, J.,*at February Term, 1943, of MeokleNbubg.

Affirmed.

*125Tbis was an action by the beneficiary in a life insurance certificate issued by defendant 3 February, 1941, on the life of Thomas J. Gregory, now deceased. The certificate was issued under a group insurance policy covering the employees of Johnston Manufacturing Company. According to the terms of the certificate it was agreed that the insurance should terminate when the insured’s employment with the employer should terminate. However, it was provided “that in a case, where at the time of the termination of employment the employee shall be insured and shall be wholly disabled and prevented by bodily injury or disease from engaging in any occupation or employment for wage or profit the insurance will remain in force as to such employee during the continuance of such disability.”

Plaintiff’s evidence tended to show that the insured became ill with ulcerated colitis in the spring of 1941 ;• that 12 June, 1941, he left the employment of Johnston Manufacturing Company because of his inability to work, due to disease, and that he died 26 August, 1941; that prior to his leaving Johnston Manufacturing Company’s employ he complained of pains in his stomach and had sick and fainting spells, and was unable to work regularly. It also appeared from plaintiff’s evidence that “after he quit the Johnston Mills he worked for a short time at Hoskins Mill.” “After he quit the Johnston Mills Company, he worked at Hoskins. He also worked at the Louise Mill for a few days.” Another witness testified that up to the time he died he was employed at the Hoskins Cotton Mills, and worked there five or six weeks; that he was “pale, weakly-looking,” and underweight. “I was doing the same kind of work in the same department or division that he was in. He ran his job very well I imagine, but I wasn’t where he was; I was at the other end. I have helped him in his job.”

The defendant offered evidence, supported by pay roll sheets, tending to show that the insured went to work in the Louise Mill 24 June, and worked regularly eight hours per day up to 15 July, and on 17 July began work at the Hoskins Mill and worked regularly there (forty hours per week) until 20 August, when he quit. All the places where insured was .employed were textile mills, and his work was that of “doffer.”

At the close of all the evidence defendant’s motion for judgment of nonsuit was allowed, and from judgment dismissing the action plaintiff appealed.

*W. Vance Howard and Joe W. Hrvin for plaintiff, appellant.*

*Tillett & Campbell for defendant, appellee.*

DeviN, J.

Under the terms of the insurance contract sued on the

insurance on the life of Thomas J. Gregory ceased when his employment

*126by tbe Jobnston Manufacturing Company, tbe employer named in tbe group policy, terminated. However, it was provided in tbe certificate of insurance tbat if at tbe time of tbe termination of bis employment, while insured, be was “wholly disabled and prevented by bodily injury or disease from engaging in any occupation or employment for wage or profit,” tbe insurance would remain in force.

Tbe question presented by tbe appeal is whether tbe evidence offered by tbe plaintiff is sufficient to bring her case within tbe proviso contained in tbe certificate of insurance. It is admitted tbat tbe insured left tbe employment of tbe Jobnston Company while tbe insurance was still in force, 12 June, 1941. "Was be at tbat time “wholly disabled” and prevented by disease “from engaging in any occupation or employment for wage or profit?” From an examination of tbe testimony appearing in tbe record we are constrained to concur in tbe ruling below tbat tbe evidence was insufficient to support tbe plaintiff’s case as to this essential element. While there is evidence tending to show tbat tbe insured was afflicted with a disease which finally proved fatal, and tbat at tbe time be left tbe employment of tbe Jobnston Company be was unable to work by reason of disease, it does appear affirmatively from tbe plaintiff’s evidence tbat as a matter of fact be did work five or six weeks with reasonable continuity at two other mills, after be left tbe employment of Jobnston Manufacturing Company, performing tbe substantial duties of tbe same occupation. *Thigpen v. Ins. Co.,*204 N. C., 551, 168 S. E., 845. Thus, tbe plaintiff has failed to show tbat be was prevented by disease from engaging in employment for wage or profit. His regular employment in two other cotton mills as a doffer for five or six weeks may not be regarded merely as an occasional or casual employment. It indicated something more than tbe intermittent and futile attempts to work on tbe part of a sick man who is “wholly disabled.” *Medlim, v. Ins. Co.,*220 N. C., 334, 17 S. E. (2d), 463; *Jenkins v. Ins. Co.,*222 N. C., 83; *Ford v. Ins. Co.,*222 N. C., 154. There was no evidence tbat be bad to work at a reduced wage, or at a different occupation, or for shorter hours, or was ever discharged for inability to perform tbe duties of bis job. *Bulluck v. Ins. Co.,*200 N. C., 642, 158 S. E., 185; *Edwards v. Junior Order,*220 N. C., 41, 16 S. E. (2d), 466; *Blankenship v. Assurance Society,*210 N. C., 471, 187 S. E., 590; 98 A. L. R., 478.

While tbe defendant offered evidence supported by pay roll records tending to show tbat after bis employment by tbe Jobnston Company terminated tbe insured worked approximately forty hours per week for eight weeks, defendant’s evidence could not be considered on tbe motion for nonsuit, except in so far as it tended to clarify or explain tbe evidence of tbe plaintiff. *S. v. Fulcher,*184 N. C., 663, 113 S. E., 769. Tbe *127rule for tbe consideration of defendant’s evidence on a motion for nonsuit was stated by *Stacy, C. J.,*in *Harrison v. B. B.,*194 N. C., 656, 140 S. E., 598, as follows: “In considering tbe last motion (for nonsuit), tbe defendant’s evidence, unless favorable to tbe plaintiff, is not to be taken into consideration, except wben not in conflict witb plaintiff’s evidence, it may be used to explain or make clear tbat wbicb bas been offered by tbe plaintiff.” Tbis statement of tbe rule was quoted witb approval in *Crawford v. Crawford,*214 N. C., 614, 200 S. E., 421; *Funeral Home v. Ins. Co.,*216 N. C., 562, 5 S. E. (2d), 820; *Jeffries v. Powell,*221 N. C., 415, 20 S. E. (2d), 561; *Tarrant v. Bottling Co.,*221 N. C., 390, 20 S. E. (2d), 565. See also *Godwin v. B. B.,*220 N. C., 281, 17 S. E. (2d), 137. In *Sellars v. Bank,*214 N. C., 300, 199 S. E., 266, it was said tbat tbe defendant’s evidence wbicb did not tend to contradict or impeach tbe evidence of the plaintiff, but “only served to amplify and explain tbe same,” could be considered on tbe motion to nonsuit. Tbe use of tbe word amplify in tbis case may not be understood as indicating a tendency to expand tbe rule laid down in tbe *Harrison case, supra,*or to open tbe door to tbe consideration, on tbis motion, of defendant’s evidence except only such as serves to explain or make clear tbat offered by tbe plaintiff.

However, without considering tbe defendant’s evidence, we think plaintiff’s evidence sufficiently tends to show tbat tbe deceased was regularly engaged in tbe same occupation, witb reasonable continuity, for a considerable period of time, after be left tbe service in wbicb be was insured. Thus, after tbe termination of bis employment by tbe Johnston Company be was unprotected by tbe saving clause in tbe certificate of insurance, and tbe casualty of bis death under these circumstances was not within tbe coverage of tbe insurance. Unfortunately for tbe beneficiary, tbis prevented recovery on tbe insurance certificate, but we must bold tbe parties bound by tbe express terms of tbe contract into wbicb they have entered.

Tbe judgment of tbe Superior Court is

Affirmed.

Seawell, J.,

concurring in result: I concur in tbe result reached in tbis case, because I think it is unavoidable on consideration of plaintiff’s evidence. But I do not agree witb tbe view expressed in tbe main opinion tbat tbe court may draw inferences from tbe defendant’s evidence unfavorable to tbe plaintiff upon a demurrer to tbe evidence and motion to nonsuit, and thereby deny tbe plaintiff bis right of trial by jury. I do not believe it is consistent witb our institutions relating to trial tbat tbe defendant may be permitted to swear himself out of court without tbe intervention of a jury, while tbe plaintiff to obtain relief must necessarily submit bis evidence to tbat tribunal.

*128In so far as I am able to discover, tbe group of cases cited in tbe main opinion in support of tbat doctrine comprises tbe whole list of decisions favorable to tbat view, and ignores scores of eases to tbe contrary.

In my judgment, tbe dissident view is based on a misconception of tbe office of a demurrer to tbe evidence and tbe purpose and effect of C. S., 567, permitting defendant as a matter of right to introduce bis evidence after demurring to tbat of plaintiff. Tbe statute is procedural and does not affect tbe principles of demurrer to tbe evidence as it existed at common law. Tbe office of demurrer to tbe evidence is to present to tbe court tbe evidence in its legal aspects only to ascertain whether it has, according to legal standards, any probative value in establishing tbe plaintiff’s claim! Tbe ultimate purpose of such an examination is simple. Tbe office of tbe court ends when tbe legal character of tbe offered proof is ascertained — whether it is evidence or no evidence to support tbe case — and from then- on it is a matter for tbe jury. Tbe ultimate reception of such evidence by tbe jury, which alone can pass upon its weight, credibility and significance, is a part of tbe process. At no point in it have we any power — except tbat which results from tbe unreviewability of our decisions — to pass upon tbe weight or credibility of tbe evidence or to accept it as true, or to balance it against tbe evidence of tbe plaintiff in aid of tbe motion to nonsuit. Compare *S. v. Fulcher,*184 N. 0., 663, with *Means v. B. B.,*126 N. C., 424, 429, construing tbe statute.

Tbat tbe weight of authority is against such a proceeding cannot be doubted upon a careful study of tbe decisions of this Court. *Springs v. Schench,*99 N. C., 551, 555; *Newby v. Bealty Co.,*182 N. C., 34, 41; *S. v. Ammons,*204 N. C., 753, 757; *Tuttle v. Bell,*203 N. C., 154, 156. Tbe list of decisions so bolding might be almost indefinitely lengthened. While these cases are expressly to tbe point, it is equally true tbat all those cases using tbe familiar formula tbat upon a demurrer to tbe evidence and motion to nonsuit, tbe evidence must be taken in tbe most favorable light to tbe plaintiff, and plaintiff is entitled to every reasonable inference therefrom, have back of them a recognition of tbe true function of tbe demurrer, as well as an appreciation of our constitutional inhibition against passing upon tbe weight and credibility, of tbe evidence and thereby depriving tbe plaintiff of bis right to trial by jury. See collection of cases in annotation under C. S., 567, Micbie’s Code of 1939.

As I have said, outside of tbe group of cases cited in tbe main opinion, it is universally held tbat tbe statute did not change any of tbe principles of demurrer to tbe evidence as they existed at common law. Tbe effect of such a demurrer in jurisdictions like ours, where courts are not permitted to pass upon tbe weight of evidence, is thus stated in 64 C. J., *129p. 384: “Only that portion of the evidence which tends to prove the case of the demurree can be considered, and evidence which tends to break down the case of demurree cannot he considered.” Otherwise, it would be a speaking demurrer.

I assume that no one would suggest that any member of this Court is concerned whether the plaintiff or the defendant wins in any particular case, or class of cases. We are all concerned with the integrity of the processes which have been established to reach justice in all cases. While abstract views upon the merits of the jury system have been entertained by groups of people at all times, few would be bold enough to dispute that institutionally, at least, and for purpose of practical observance, the debate was closed with the adoption of Article I, section 19, of the Constitution, which requires that it be kept inviolate. Whether the line has been overstepped in the ease at bar is a matter of individual opinion, and I accord to my colleagues as much sincerity in their position as I expect for my own.

For several hundred years English speaking peoples have been unwilling to trust judges as triers of the facts, and have emphasized that feeling in the only way they could — by writing it in the fundamental law. They still try to maintain that principle. It is not that our courts are not now filled with men of integrity and ability — perhaps it is because they are not yet convinced that society has not received as much damage from the mistakes of judges as it has from the ignorance of juries. Whether I personally share that feeling or not, I prefer that when these barriers are broken down, it should be by an orderly amendment to the Constitution and not through erosion by the Court.

The statute, C. S., 591, empowers the trial judge, in his discretion, to set aside the verdict for insufficiency of evidence. This is the only relief consonant with the constitutional limitations on judicial power.