Lee v. Equitable Life Assurance Society of the United States

211 N.C. 182

• Court: Supreme Court of North Carolina
• Decided: January 27, 1937
• Status: Published

Opinion

ClaeKSON, J.

We think the plaintiff alleged too much in his complaint to recover on the policy in controversy, and the demurrer of defendant must be sustained. The allegations in the complaint appeal to the humane attitude, but we are not permitted to go beyond the terms of the contract. When plaintiff’s claim was disallowed, he worked from January to tbe latter part of November, 1934, in tbe Dan River Cotton Mills and performed work “for compensation of financial value.”

In Smith v. Assurance Society, 205 N. C., 387 (393), this Court said: “The evidence in all the above cases and in the present case indicates that the jobs were of a trifling nature. Is it possible to construe a policy like the present to say that a man, although death-doomed with tuberculosis, and having a wife and seven children needing, as the plaintiff testified, ‘something to eat,’ if be should attempt in his wasted condition to try in a feeble way to do trifling work, that this was a forfeiture of bis policy? Such a holding would be contrary to the spirit, if not the letter, of the contract.”

When the plaintiff’s claim was disallowed he could have at once sued defendant and recovered, if it was liable on the contract. He did not do this but took a permanent job for some nine months. The pathos is that innumerable men and women like plaintiff have bad to work, and do now work, for their daily bread, handicapped by disease. The action is on a contract which we think the allegations of plaintiff exclude him from its provisions. We think the case of Thigpen v. Ins. Co., 204 N. C., 551, determinative of this cause. In that case a “court crier” received $40.00 a month for bis services.

For tbe reasons given, tbe demurrer is sustained and tbe judgment of the court below is

Reversed.