Fore v. Equitable Life Assurance Society of the United States

Schenok, J.

The sole question presented on this appeal is whether the plaintiff became totally and permanently disabled while insured by the certificate issued to him under the group policy issued by the defendant to the American Enka Corporation.

The plaintiff, as a witness in his own behalf, testified that he went to work for the American Enka Corporation on 31 December, 1932, and continued to work there until about 26 September, 1934; that he worked in the spinning department, where there were two vats of acid on each side of the machine at which he worked, holding something like 300 gallons of acid, and after he had worked a while in this acid he began to lose weight and to take a hacking cough and had quite a bit of trouble in his throat, which caused him to go to see a doctor, who gave him an examination; that he left the employment of the American Enka Corporation because he was sick and wasn’t able to work; and that since he has been away from this employment he has been sick, with no strength, underweight about 22 or 23 pounds, and has had a hacking cough, and when he tries to do any work he gives out and cannot do it.

Dr. Donald S. Tarbox, an admitted medical expert, testified for the plaintiff that he found the symptoms from which the plaintiff was suffering to be those most commonly found in pulmonary tuberculosis, and that the X-ray examination of the plaintiff by Dr. Murphy confirmed his findings. Dr. Tarbox further testified that he had an opinion satisfactory to himself as to what caused the plaintiff’s condition, and that it was that the present respiratory infection was irritation of the lungs and *551 the toxic effect of the fumes of sulphuric acid; and that in his opinion the plaintiff would not make such a recovery as to get well and return to his ordinary work.

The defendant’s witness, H. G. Setzler, testified in effect that he was the overseer of the spinning department of the American Enka Corporation, and that the plaintiff worked under him, and gave him notice on 26 September, 1934, that he was quitting work, and that the plaintiff said he was quitting because he was going into business for himself in West Asheville, and that he, the witness, made a memorandum of this statement in his book at the time it was made, and that plaintiff did not say anything about being sick or disabled.

The defendant offered testimony of other witnesses tending to show that the plaintiff worked full time up to and including 26 September, 1934, and received full pay therefor, and immediately after quitting his work he opened a filling station and later a restaurant, and had continuously worked up to the time of the trial of this action.

The plaintiff, in rebuttal, testified in his own behalf that he did not tell Mr. Setzler, his overseer, that he was quitting work to go into business for himself, but told him that he was quitting for some time on account of his health, and that while he had been able to do some little odd jobs, selling Coca-Cola and the like, he had not been able to continuously do any work for profit since 26 September, 1934.

There was other adminicular evidence for both plaintiff and defendant.

This case is distinguished from Boozer v. Assurance Society, 206 N. C., 848 , relied upon by the defendant. The plaintiff in that case was discharged for violation of the rules of his employer, and up to the time of such discharge was able to and did fully perform all the duties of his employment, and did not- suffer total disability until some months after his discharge. In the instant case the evidence as to the physical condition of the plaintiff at the time he ceased to work for the holder of the group policy, and as to the reasons for his quitting such work, as well also as to his physical condition since that time, was conflicting and clearly raised an issue for the jury.

Fields v. Assurance Company, 195 N. C., 262 ;

Bulluck v. Insurance Company, 200 N. C., 642 ; and Gossett v. Insurance Company, 208 N. C., 152 , and cases therein cited.

There was no error in the action of the judge of the Superior Court in sustaining the denial of the motions for judgment as of nonsuit or in affirming the judgment of the general county court.

No error.