Appeal
from Superior Court, Buncombe County; Alley, Judge.
Action
by Carl E. Smith against the Equitable Life Assurance Society
of the United States. Judgment for plaintiff, and defendant
appeals.
No
error.
Provision
in charge that insured's performance of work of trifling
nature would not preclude recovery of disability benefits
held not erroneous when considered with prior portion of
charge.
This is
an action brought by plaintiff against defendant to recover
$502.50 for total permanent disability on a group life
insurance policy, which also provided on death $500 payable
to his wife, issued to him, dated November 1, 1929, No
3215--88. The material provisions of the policy to be
considered are as follows:
"(1)
The insurance upon the life of any employee shall
automatically cease upon the termination of his employment
with the employer in the specified classes of employees
etc.
"(2)
Total and Permanent Disability Provision: In the event that
any employee, while insured under the aforesaid policy and
before attaining age 60 becomes totally and permanently
disabled by bodily injury or disease and will thereby
presumably be continuously prevented for life from engaging
in any occupation or performing any work for compensation
of financial value, upon receipt of due proof of such
disability before the expiration of one year from the date
of its commencement, the Society will, in termination of
all insurance of such employee under the policy, pay equal
monthly Disability-installments, etc.
"(3)
The first payment shall be due upon receipt of said proofs
and shall be for the amount of monthly
Disability-instalments accrued from the commencement of
said Total and Permanent Disability, and subsequent
instalments shall be paid monthly during the continuance of
such disability until the completion of said
instalments."
The
defendant denied liability and for a defense alleged:
"That said Individual Certificate No. 3215--88 provides,
among other things, that defendant's liability thereunder
shall automatically cease upon the termination of the
insured's employment with the Employer in the specified
class of employees. That on August 27, 1931, American Enka
Corporation, employer of the plaintiff, discharged said
plaintiff for general unsatisfactory services; that the said
plaintiff worked every day up to the date of said discharge,
and was in good health and physical condition on said date
and prior thereto," etc.
Defendant's
witness Cooke, the paymaster, testified: "We paid him
(plaintiff) the regular monthly salary for September."
Again witness Cooke says: "We paid him another two weeks
salary on September 15th." Again says the same
paymaster: "He came two weeks later and got a pay
check." And defendant's witness Heykoop, an official
of the company, testified: "He was to be paid to the end
of September."
Plaintiff
testified, in part:
"I
paid the amount on this policy up until the 30th of
September, 1931.
"Q.
I hand you a piece of paper. I would like for you to state,
if you can, what that is? A. I cannot see. (Examining under
electric light) That is a stub of my check given me on
September 1, paying me up to and through the 15th day of
September, 1931, where the insurance shows up to be
deducted there for the month of September.
"Mr.
Wright: I wish to read one item: 'Deductions, insurance
$2.70.'
"The
Court: You can find if he has any other insurance. It must
be connected with this, or I will strike it out. Still I
see no necessity for pursuing that line when the defendant
admits that they are liable if you show disability.
"Mr.
Wright: If they will admit it in the record.
"Mr.
Du Bose: We say the insurance policy was in force according
to its terms, from the day it was issued until the date of
the termination of his employment, just exactly as the
policy reads, whether he paid a nickel or $50.00.
"The
Court: You admit if he incurred or sustained total
disability within that time, you would be liable for it?
"Mr.
Bernard: Yes."
Plaintiff
continued: "I began working for The American Enka
Corporation May 13, 1929, at 7:30, and continued working
there until August 27, 1931, when I was relieved from duty,
but continued on the payroll until to and through September
30, 1931. My duties were paint foreman in charge of paint
when I began, and I continued in the same capacity all the
time as paint foreman. *** I was drawing full pay up to
September 30, 1931. The Company relieved me from August 27,
1931. *** They did not require any work of me. I didn't
pretend to work. *** After that my physical condition got
worse. Mr. Heykoop complained to me on two or three different
occasions before that. Nobody else made any complaint to me.
Mr. Gills called me in the office. He was the Plant Manager,
Production Manager is the way he was rated, and he called me
in his office and said to me, 'Mr. Smith, we are mighty
sorry to have to do this, and we are especially sorry for
your large family, and for this reason we are going to
continue to pay you through the month of September, that you
might have a long rest or vacation, whichever one you want to
call it."'
The
evidence of plaintiff was to the further effect that during
the period of over two
years plaintiff worked for the company he was subjected to
breathing sulphuric acid and ammonia fumes and gases, which
adversely affected his lungs, throat, and eyes; his back was
strapped with adhesive tape and he went to Enka Hospital for
treatment on a number of occasions; and in July, 1931,
plaintiff informed one of the officials of the company that
his physical condition had gotten so bad that he was unable
to take care of his job. Plaintiff developed tuberculosis and
his eyesight became very greatly impaired, so that in
January, 1932, nine-tenths of his eyesight was gone and could
not be recovered.
Dr. C.
D. W. Colby, a witness for plaintiff, admitted a medical
expert and a specialist on tuberculosis, testified in part:
"At
the time I examined Mr. Smith, September 30, 1931, my
recommendation and orders to him were to rest. It is
impossible to give an opinion as to the duration of this
physical condition prior to September 30th.
"Q.
How long, in your opinion, had it existed? A. The whiteness
of the nodes would indicate some long time, but the fuzz that
surrounds the smaller branches of bronchial tree was of more
recent date. I could not be exact. At the time I examined Mr.
Smith I did not consider him fit to perform any physical
labor without undue exhaustion."
Dr. S.
S. Fay, a witness for plaintiff, a medical expert, testified
in part:
"I
first examined Mr. Smith between the 1st and 10th of January,
1932. I don't know the exact date. *** His retina is
practically destroyed, and that particular tissue is never
regenerated, so on vision alone, I consider him totally
disabled. I did take the trouble to examine his chest, though
he told me that he was under Dr. Colby's care there. He
had bronchial breathing all over the chest on the left side,
and at that time he had a dry pleurisy and some little cavity
over his chest. He was troubled also with gastric trouble.
The two things permanent I considered the chest and the
vision as the disability. The others were side issues. I saw
him last about the last of March.
"Q.
Have you an opinion satisfactory to yourself as to whether or
not the plaintiff, Carl E. Smith, is now permanently and
totally disabled? A. Yes, I have an opinion.
"Q.
What is that opinion? A. I believe that he is totally
disabled from either point of view, either from chest or
vision, that is, as to being capable of any gainful
occupation. Both of them are permanent. I have an opinion
satisfactory to myself as to whether or not this same
condition that now exists, existed back in August 1931, and
September 1931.
"Q.
In your opinion, was the trouble that you found there of
recent origin, or of some long standing? A. I should say that
the chest condition was of long standing, because fibrous
tissue to that extent cannot be formed in a short time.
"Q.
How long do you think it would take to form that condition?
A. I would be hard to put a definite time, but I would say a
year or two; but as to the immediate activity nobody can say
how long that took, but the old fibrous tissue was there for
over a year. *** He might be able to see to mix paint, but he
is not physically able to do the painting, has not strength
enough to do it, if he could do it, so that really the mixing
is inconsequential. Any kind of work or exertion would wear
him out very quickly. He has comparatively a small amount of
lung tissue that is normal now, and it would just aggravate
the condition and make it worse. His chest condition will
never be any better, and if he exerts himself, it would just
make it worse."
Plaintiff
after leaving the Enka Corporation suffering...
