Blankenship v. Equitable Life Assur. Soc. Of The United States, 17.

• Decision Date: 23 September 1936
• Docket Number: No. 17.,17.
• Parties: BLANKENSHIP. v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.
• Court: North Carolina Supreme Court

210 N.C. 471

187 S.E. 590

BLANKENSHIP.

v.EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.

No. 17.

Supreme Court of North Carolina.

Sept. 23, 1936.

Appeal from Superior Court, Haywood County; Oglesby, Judge.

Action by Andrew J. Blankenship against the Equitable Life Assurance Society of the United States. From a judgment for plaintiff, defendant appeals.

No error.

Du Bose & Orr, of Asheville, for appellant.

Chester A. Cogburn, of Canton, and Smathers, Martin & McCoy, of Asheville, for appellee.

PER CURIAM.

This is an action to recover for total and permanent disability upon a certificate issued to the plaintiff, as an employeeof the Champion Fibre Company, to which the defendant had issued a group life, health, and accident insurance policy.

The defendant admitted that the group policy and certificate were in effect on and before June 16, 1932, the date plaintiff ceased to work for the fibre company, but denied that the plaintiff was totally and permanently disabled at that time, as contemplated by the policy and certificate, and on appeal contends that its demurrer to the evidence and motion for judgment of nonsuit should have been sustained.

The defendant contends that this case is governed by Thigpen v. Insurance Company, 204 N.C. 551, 168 S.E. 845; Boozer v. Assurance Society, 206 N.C. 848, 175 S. E. 175, and similar cases. The plaintiff contends that the case falls within the principle enunciated in Smith v. Assurance Society, 205 N.C. 387, 171 S.E. 346, and Fore v. Assurance Society, 209 N.C. 548, 184 S.E. 1, and cases there cited.

The evidence tended to show that the plaintiff began work for the Champion Fibre Company on December 1, 1931, and in December, 1931, he failed to work for several weeks on account of illness, but resumed work and continued it until the 16th of June, 1932, when he suffered a serious attack with his head and was forced to quit work; that he was unconscious for several days and was treated by a physician; that in 1934 for a month or two plaintiff worked on a PWA improvement project at Morning Star School House, and in February, 1935, he worked awhile repairing sanitary privies, and later worked in a cannery project of the PWA at Waynesville; that while working at the Morning Star School House the plaintiff was assigned to light work using a small rake, but was sick off and on, and oft-times had to lie down to prevent an attack with his head; that while working on the privies plaintiff used a saw and hammer, and later, because ...