Wooten v. Nationwide Mut. Ins. Co.

298 S.E.2d 727 (1983)

William A. WOOTEN v. NATIONWIDE MUTUAL INSURANCE COMPANY.

No. 828SC136.

Court of Appeals of North Carolina.

January 4, 1983.

*728 David M. Rouse, Goldsboro, for plaintiff-appellant.

Dees, Dees, Smith, Powell & Jarrett by William W. Smith, Goldsboro, for defendant-appellee.

HEDRICK, Judge.

The "Volunteer Group Accident Insurance Policy" provides, among other things, that the insurer will pay disability and medical benefits to the insured when he sustains damage resulting from injury by accident "directly and independently of all other causes."

It is the duty of the trial judge to submit to the jury issues which are raised by the evidence, and which, when answered, will resolve all material controversies between the parties. G.S. § 1A-1, Rule 49. In the present case, the questions submitted to the jury confused the material issues which were raised by the evidence. Read alone, issue one and its affirmative answer appear to establish defendant's liability. Read with issues two and four and their negative responses, however, issue one with its affirmative answer is contradictory and meaningless.

The evidence raises an issue as to whether plaintiff was disabled and incurred medical expenses as a result of the 29 March 1976 accident, directly and independently of all other causes. If the jury should answer this issue "yes," it would be necessary to answer the issues as to what amount plaintiff is entitled to recover for medical expenses and disability. The burden of proof on all three issues is on the plaintiff. Horn v. Insurance Co., 265 N.C. 157, 143 S.E.2d 70 (1965).

For error in framing the issues, plaintiff is entitled to a new trial.

New trial.

WEBB and BECTON, JJ., concur.