Annotate this Case

119 S.E.2d 1 (1961)

254 N.C. 346


No. 254.

Supreme Court of North Carolina.

March 29, 1961.

Wm. H. Abernathy, Charlotte, for plaintiff, appellee.

Claude V. Jones, Durham, for defendant, appellant.

HIGGINS, Justice.

In order to recover under an insurance policy, the insured must carry the burden of showing coverage. If, thereafter, the insurer relieves itself of liability, it must carry the burden of showing exclusion from coverage. Fallins v. Durham Life Ins. Co., 247 N.C. 72, 100 S.E.2d 214; Collins v. United States Casualty Co., 172 N.C. 543, 90 S.E. 585. The question before the trial court was whether the evidence established the presence of "gall bladder trouble" at the time the policy became effective. Or does the evidence go no further than to present an issue of fact to be determined from the evidence? It may be noted the insurer paid for the first two operations without question.

Dr. Thompson, the surgeon who performed the operations, described in finding No. 4, testified for the defendant. Here is his summary: "I have an opinion as to whether the character of these complaints which I have enumerated to you would suggest to me, as a physician, the presence of gall bladder disease. My opinion that this history of pains is compatible with but not diagnostic of gall bladder disease. * * * The presence of gallstones is one of the diseases that can cause some of the symptoms or history of pains that have been described. They are not entirely typical, but suggestive of it. In my opinion, as a physician, these complaints are consistent with the presence of stones in the ducts or tubes leading from the gall bladder, not strongly suggestive of them."

Apparently Dr. Thompson considered all symptoms up to the time of the operations and attempted to relate them back to Mrs. Abernethy's condition on February 15, 1957. At the time of the operation the policy had been in effect 18 months. Dr. Thompson was unable to determine when the trouble had its onset. His evidence leaves the date in the realm of conjecture.

In weighing the testimony in this case, the court acted as the jury and found the defendant had not carried the burden *3 of showing Mrs. Abernethy suffered from "gall bladder trouble" prior to the effective date of the policy. The rule of law applicable under such circumstances is correctly stated by Justice Parker in Cudworth v. Reserve Life Ins. Co., 243 N.C. 584, 91 S.E.2d 580, 584: "The evidence, and the reasonable inferences to be drawn therefrom, are in conflict as to whether Cudworth's lung cancer did, or did not, originate while the policy was in force * * * and we cannot usurp the province of the jury to resolve this conflict." See also, Hill v. Federal Life & Casualty Co., 252 N.C. 649, 114 S.E.2d 648.

The evidence at best involves inferences of fact which must be determined by the fact-finding bodyin this instance the trial judge. The finding is conclusive.

After careful examination of all assignments of error and the authorities cited in support, we conclude that error of law or legal inference does not appear. Hence, the judgment of the superior court is