#### JACK H. AMMONS v. EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES.

(Filed 28 June, 1933.)

Insurance M c — Insured failed to show that he had given proof of disability to proper agent of insurer, and nonsuit was proper.

Plaintiff sought to recover for permanent disability under a certificate of group insurance. The policy provided that proof of such disability must be furnished the company within one year thereof. Plaintiff’s evi*24dence tended to sliow that within the year he furnished the written statement of the attending physician which stated that the disability was not permanent, and that he orally stated his permanent disability to the paymaster in charge of disability claims for the employer, but who was not employed by the insurer. *UeW,*the burden of proof was on plaintiff, and the written statement of the physician denied that the disability was permanent, and the oral proof was not shown to have been given a proper agent of the insurer, and the insurer’s motion as of nonsuit should have been granted.

Civil action-, before *Clement, J.,*at November Term, 1932, of BUNCOMBE.

This action was instituted in tbe General County Court of Buncombe County upon certificate No-. 3215-198, issued by tbe defendant pursuant to a group policy plan. Tbis certificate provides, among- other things, tbe following: “In tbe event that any employee while insured under tbe aforesaid policy and before attaining age sixty, 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 tbe expiration of one year from tbe date of its commencement, tbe society will, in termination of all insurance of such employee under tbe policy, pay equal monthly disability installments, tbe number and amount of which shall be determined by tbe table of installments below.”

Tbe plaintiff was employed by tbe American Enka Corporation, and a group policy of insurance bad been provided by said corporation for tbe benefit of its employees. Tbe certificate issued to tbe plaintiff was for tbe sum of $500.00 and payable in ten monthly installments of $50.35 per month. Tbe plaintiff alleged that be became disabled on or about 1 March, 1931, and that on or about 18 January, 1932, be consulted counsel and was advised that it was necessary for him to furnish due proof of total disability. In consequence thereof Dr. H. S. Ogilvie, of Asheville, filled out a blank designated as a group disability claim of defendant. Tbis attending physician’s statement, as shown on said blank, disclosed certain facts with respect to tbe claim of tbe claimant. Paragraph'll of tbis statement contains two questions, as follows: (a) “Do you believe tbe claimant to be so disabled that be is wholly prevented for life from pursuing any and all gainful occupation?” Tbe physician answered tbis question “No.” (b) “Or is tbis total disability only temporary?” Tbe physician answered tbis question “temporary.” Tbe plaintiff testified that be notified Mr. Cooke, who was paymaster for tbe American Enka Corporation. Tbe testimony was: “He is not employed in any way by tbe insurance company, but be acts as free agent there, I would say, for tbe insurance company. He bandies disability claims-, *25we take suck action as we see fit in our office on the disability claims. - . . Some claims have been filed through. Mr. Cooke. . . . He looks after them to a certain extent for the insurance company. . . . The notices under the life insurance policies are referred to the Insurance Company in New York.” There was other evidence that Mr. Cooke was paymaster and in charge of the insurance of employees at the plant, and that he furnished the blank heretofore referred to.

Issues were submitted to the jury and answered in favor of plaintiff, .and from judgment rendered the defendant appealed to the Superior Court upon certain exceptions. The trial judge after hearing the exceptions, declared: “This court finding that there was not sufficient evidence presented by the plaintiff in the lower court to go to the jury, and therefore, the defendant’s motion for judgment as of nonsuit should have been sustained. . . . It is adjudged . . . and decreed that the judgment entered in this cause by the judge of the General County Court be, and the same is hereby reversed and the cause remanded to the said court to the end that a judgment be entered therein in accordance therewith.”

From the foregoing judgment plaintiff appealed.

*Edward H. MacMahan for plaintiff.*

*Bourne, Parker, Bernard & DuBose for defendant.*

BnoomoN, J.

The principles of law applicable to the facts are well settled and the merits of this cause rest solely upon an interpretation of the evidence in the record.

In order to recover the benefits provided in the policy it was necessary for plaintiff to offer evidence tending to show: (1) permanent disability, and (2) due proof thereof within a period of one year from the date of flic commencement of the disability. There was sufficient evidence of permanent disability within the contemplation of the terms of the policy of insurance, and the vital question is whether due proof was furnished within one year. The testimony tended to show that the disability commenced about March, 1931. In January, 1932, the plaintiff undertook, as ho contends, to furnish proof thereof. Such proof consists of two elements: (a) the written statement of the attending physician, and (b) verbal statements to Mr. Cooke, paymaster of the Enka Corporation which employed the plaintiff and procured the group insurance. The written statement of the physician expressly declares that the plaintiff was not totally and permanently disabled and that the total disability was only temporary. Hence, the written proof furnished put the plaintiff out of court. However, the policy does not require that written prsof should be furnished, and the plaintiff undertook to show that *26verbal proof of disability was given within the one-year period. Manifestly such verbal proof should have been given to a proper agent of defendant. The testimony is to the effect that the oral declarations of disability were given to the paymaster of the Enka Corporation, who-was “not employed in any way by the insurance company.” There is evidence tending to show that Mr. Cooke looked after certain disability claims of employees of the corporation, but it does not appear whether such activities were performed in behalf of the corporation or of the defendant insurance company.

The burden of proof was upon the plaintiff, and as we interpret the record, there was no evidence that due proof of total disability has ever been furnished by the plaintiff to the defendant insurance company. Therefore, the ruling of the trial judge was correct.

Affirmed.