Ballew v. Liberty Life Ins. Co., 20622

• Decision Date: 27 February 1978
• Docket Number: No. 20622,20622
• Citation: 270 S.C. 301,241 S.E.2d 907
• Court: South Carolina Supreme Court
• Parties: Clayton Gordon BALLEW, Sr., Appellant, v. LIBERTY LIFE INSURANCE COMPANY, Respondent.

Page 907

241 S.E.2d 907

270 S.C. 301

Clayton Gordon BALLEW, Sr., Appellant, v. LIBERTY LIFE INSURANCE COMPANY, Respondent.

No. 20622.

Supreme Court of South Carolina.

Feb. 27, 1978.

David D. Armstrong, Jack H. Lynn, and W. Dennis Chamberlain, Greenville, for appellant.

Charles W. Wofford, of Wyche, Burgess, Freeman & Parham, Greenville, for respondent.

GREGORY, Justice:

Clayton Gordon Ballew, Sr., appeals from an adverse jury verdict in an action to recover on the double indemnity clause of a life insurance policy. Appellant contends the lower court erred by refusing to grant his motion for judgment non obstante veredicto or in the alternative for a new trial. We find no error and affirm.

The insured was found dead in bed by his father on February 4, 1975. The insured was twenty-one years old. Appellant, the insured's father and beneficiary, was paid the face amount of the policy and brought this action to recover on the policy's double indemnity clause which provides:

On receipt of due proof that the Insured's death shall have . . . (b) resulted from injury sustained as the direct result of an accident independent of all other causes, . . . the company will pay a Double Indemnity Benefit equal to the face amount . . . .

The Double Indemnity Benefit shall not be payable if the Insured's death shall result directly or indirectly, wholly or partly, from (a) disease, illness or infirmity of the body or mind.

The essence of appellant's case was that the insured died accidentally from an overdose of Nembutal, a barbiturate. Respondent's defense was that the insured's death resulted from drug addiction, which respondent argued is a disease within the exclusion clause of the insurance policy.

After the jury returned a verdict for respondent, appellant first moved for judgment non obstante veredicto. That motion was denied. Appellant alleges the lower court's denial of that motion was error because the evidence and all reasonable inferences therefrom are only susceptible of the conclusion that the insured's death was the result of an accident within the meaning of the double indemnity clause.

Rule 79 of the Circuit Court Rules authorizes a post trial motion for judgment non obstante veredicto only when a motion for a directed verdict has been made at trial and a verdict has been returned against the movant. Grooms v. Zander, 246 S.C. 512, 144 S.E.2d 909 (1965). Appellant did not move for a directed verdict at trial and concedes this omission in his brief. Accordingly, no error was committed by the lower court's denial of appellant's motion.

Appellant next appeals the denial of his motion for a new trial. This motion was made on the ground that the trial judge erred by failing to exclude the opinion testimony of respondent's expert witness.

Respondent placed Dr. Louis A. Cancellaro on the stand and qualified him as an expert in the field of drug addiction. In response to a lengthy hypothetical question Dr. Cancellaro testified that the insured was "a polydrug user with an...