Annotate this Case

130 S.E.2d 36 (1963)

259 N.C. 115


No. 239.

Supreme Court of North Carolina.

March 20, 1963.

*37 Berry & Browne, Charlotte, Allen & Steed, by Thomas W. Steed, Jr., Raleigh, for defendant, appellant.

Elbert E. Foster, Charlotte, for plaintiff, appellee.

HIGGINS, Justice.

The essential facts are not in dispute. The plaintiff contends the court's finding No. 6, unexcepted to, is conclusive, and establishes his right to recover under the policy. However, the defendant, at the conclusion of the plaintiff's evidence and *38 again at the conclusion of all the evidence, moved for judgment of nonsuit. Exceptions to the refusal to nonsuit were taken and are assigned as error. Consequently, the question whether No. 6 is a finding of fact, a conclusion of law, or a combination of both, is immaterial. The sufficiency of all the evidence to support the judgment is challenged by the assignment of error. The ultimate and controlling facts not being in dispute, the construction of the policy becomes a matter of law.

The parties admit the plaintiff received an injury by accident on October 1, 1961. He received first aid treatment for burns on that date. Within two or three days there-after he developed pain over the kidney area. However, he did some work in his regular occupation as driver of the fire truck. The pain became more and more intense until on November 21, under his doctor's orders, he entered Mercy Hospital in Charlotte where, on December 4, Dr. Squires removed his right kidney.

Claims are provided for under "SPECIAL INDEMNITY" provisions of the policy. The main coverage is for loss of life, one or both hands, one or both feet, the sight of one or both eyes, amputation of certain fingers on one or both hands. No. 3 provides for the indemnity for the expenses of hospital confinement. No. 6 provides for weekly income while in hospital for the period of such confinement. Both provisions require that the loss shall occur within 30 days from the date of the accident, and that the confinement must be continuous. Within 30 days from the time it happened, the accident must necessitate removal to and continuous confinement within an incorporated hospital. Actually the terms cover only what the victim of the accident doesnot what he might have done.

All the evidence indicated, and the court found, the plaintiff did not enter the hospital until 51 days after the accident. Notwithstanding the doctor's testimony that claimant should have entered the hospital for treatment of his injury within the period of 30 days after he sustained his injury, nevertheless he delayed for 51 days. The insurance policy, by its plain and unambiguous terms, insures against what actually happens to the patientnot what some doctor may conclude afterwards should have happened to him.

The policy upon which the plaintiff seeks to recover was approved both as to form and premium rate by the North Carolina Commissioner of Insurance. In order to determine a reasonable premium rate for accidental injury, the insurer, by the contract, must set out the specific types of loss which are covered and also the time limit within which the loss must actually occur. The time limitations fixed by the policy within which the loss must occur is based on the theory that the longer the time between the accident and the time the loss is incurred, the greater the chances are that facts not attributable to the injury do contribute to the loss. Clark v. Federal Life Ins. Co., 193 N.C. 166, 136 S.E. 291; Continental Casualty Co. v. Ogburn, 175 Ala. 357, 57 So. 852; Mullins v. National Casualty Co., 273 Ky. 686, 117 S.W.2d 928, 118 A.L.R. 331; 29A Am.Jur., Insurance, 1163; 118 A.L.R. 335. "* * * (P)olicies of insurance, like other contracts, must receive a reasonable interpretation, consonant with the apparent object and plain intent of the parties." Powers v. Travelers Ins. Co., 186 N.C. 336, 119 S.E. 481; 14 R.C.L. 931.

The beginning of the time period in which the loss must occur is fixed at 30 days from the date of the accident. The fact that plaintiff chose to purchase a policy with insufficient time limit to cover this particular loss neither justifies nor permits the court to rewrite the policy to cover the loss. Judgment of nonsuit should have been entered at the close of the evidence. The judgment in favor of the plaintiff in the court below is