Blackwell v. Prudential Ins. Co. of America
| Decision Date | 11 May 1945 |
| Docket Number | 15734. |
| Citation | 34 S.E.2d 57,206 S.C. 320 |
| Parties | BLACKWELL v. PRUDENTIAL INS. CO. OF AMERICA. |
| Court | South Carolina Supreme Court |
Osborne, Butler & Moore, of Spartanburg, for appellant-respondent.
Sam R. Watt and Bruce Littlejohn, both of Spartanburg, for respondent-appellant.
This is an action to recover certain disability benefits under a policy of life insurance issued by defendant, Prudential Insurance Company of America, to plaintiff, John F Blackwell, on June 20, 1931. The policy was written as a part of a group insurance policy covering certain employees of the Whitney Manufacturing Company, a corporation engaged in the manufacture of textile products and located in Spartanburg County. The disability clauses of the policy provided for the waiver of premiums and the payment of a certain amount to the insured in the event that he became totally and permanently disabled before reaching sixty years of age. Plaintiff alleged that he became so disabled sometime prior to December 19, 1941. The only defense interposed by the defendant material to the issues on this appeal was a denial that plaintiff was totally and permanently disabled. At appropriate stages of the trial, defendant duly made motions for a nonsuit and a directed verdict, which were refused by the trial Judge and the case submitted to the jury, resulting in a verdict for plaintiff. Defendant thereupon made a motion for judgment non obstante veredicto and failing in that, for a new trial. The Court refused the motion for judgment non obstante veredicto, but granted a new trial on the ground that the charge 'was so contradictory that the jury could easily have been befuddled.' Both parties have appealed plaintiff from that portion of the order granting a new trial and defendant from that portion of the order refusing its motion for judgment non obstante veredicto. We shall first consider defendant's appeal.
Plaintiff is 58 years of age, was born on a farm in Spartanburg County only acquired a fifth grade education, and has been engaged in textile work for more than 25 years. Before working for the Whitney Manufacturing Company, he was an assistant overseer at several textile plants. About 1925 he commenced his employment with the Whitney Manufacturing Company. For the first two years he was assistant overseer in the clothroom. In 1927 he was advanced to the position of overseer and continued in this capacity for a period of eleven years. In October, 1938, he was compelled on account of ill health to relinquish his work as overseer. After remaining in a hospital for about two weeks, he then secured employment in the mill store of Whitney Manufacturing Company and this employment continued from October, 1938, to June 1940. During the summer of 1940 he was an unsuccessful candidate for coroner of Spartanburg County. In November, 1940, he again entered the employment of the Whitney Manufacturing Company in the capacity of assistant overseer. This employment continued until July, 1941, when the condition of his health necessitated his discontinuing all work. He did no further work until March, 1942, when he secured employment with the Whitney Manufacturing Company as a gatekeeper and was so engaged when this case was tried in May, 1943.
The family physician of insured testified that he has continuously treated him since about 1936, which was about two years before he was compelled to give up his work as overseer. It appears from the disagnosis of this physician that insured is suffering from a fallen stomach (gastroptosis). This physician testified that the health of insured has been bad since 1936; that the condition of his stomach causes pain and extreme nervousness, which is aggravated by any physical exertion; that his disability is permanent; and that he will never be able to engage in any work requiring much physical exertion or involving mental strain.
Counsel for defendant state in their brief 'that the contention is not made that the insured is capable of carrying on his old occupation.' It is the primary contention of the defendant on this appeal that the undisputed evidence shows that the plaintiff at the time when he claims he became disabled was engaged, and since has been continuously so engaged, in a new field of employment with compensation reasonably comparable with that formerly earned by him and that the new employment is such 'as the insured might fairly be expected to follow in view of his station, circumstances, training, aptitude and physical and mental capabilities.' In other words, counsel for defendant assert that the new employment of assured as gatekeeper is one for which he is fitted and that the earnings from same reasonably approximate those received in his former employment. On this ground it is urged that the Court below erred in not directing a verdict for the defendant. In support of this contention, defendant's counsel say that this case is governed by the legal principles enunciated in the cases of Moyle v. Mutual Life Insurance Co. of N.Y., 201 S.C. 146, 21 S.E.2d 561 and Dunlap v. Maryland Casualty Co., 203 S.C. 1, 25 S.E.2d 881, 149 A.L.R. 1. (Attention is called to the extensive annotation of the Dunlap case, beginning on page 7 of 149 A.L.R., where the cases bearing on all phases of the subject of disability insurance are ably reviewed.)
It was held in the Moyle case [201 S.C. 146, 21 S.E.2d 566] that where 'the insured is unable to perform all the material acts incident to the adequate prosecution of a business for which he has special training and has followed for many years, but is nevertheless enabled, by reason of new professional or business skills or experience acquired by him, to perform the duties of a full time job in a new field for compensation reasonably comparable with the amount of compensation formerly earned by him,' he is not totally and permanently disabled within the contemplation of the usual disability provisions of a policy.
In construing a disability clause similar to the one involved in the instant case, this Court in the Dunlap case [203 S.C. 1, 25 S.E.2d 884] said: The Court further stated: 'A policy of this kind cannot be held to be one of income insurance, guaranteeing the insured against depreciation of his income on account of any injury; yet, if an insured is rendered incapable of continuing in his former occupation, but is able to perform some other work, that work in our opinion must not only be an occupation or employment for which he is reasonably fitted, but must rationally approach the same livelihood and standard of living which he enjoyed prior to his injury.'
With the foregoing principles in mind, we will now proceed to examine the nature and character of plaintiff's old and new employment and compare the earnings received. The evidence abundantly shows that the only special training which the plaintiff had was in textile work. Through diligent application to his work, plaintiff had advanced to the position of overseer of the clothroom. The secretary and assistant treasurer of the Whitney Manufacturing Company testified that experience of from five to ten years is required in order for one to qualify as an overseer, who is regarded as more or less of an executive. An overseer is paid a straight salary and no deduction is made if he is absent for a reasonable length of time on account of illness or other good cause. The record does not clearly disclose the earnings of the plaintiff prior to 1937. The mill records show that as overseer, from January, 1937, to October, 1938, the plaintiff earned from $35 to $40 per week. At the time of the trial the overseer who succeeded the plaintiff was receiving $50 per week. The plaintiff's work as overseer was entirely satisfactory and if he had not been prevented from doing so by illness, no reason appears why he could not have continued in this capacity. From October, 1938, to June, 1940, while working in the mill store, the plaintiff received $60 per month, or less than half of his previous earnings. From November, 1940, to July, 1941, he received as assistant overseer from $16 to $19 a week, or approximately half which he earned as overseer. It is conceded that there is sufficient evidence to show that he is unable to carry on this work.
Turning now to the new employment, it appears that the job of gatekeeper or watchman was created by the war emergency. The mill did not maintain a gatekeeper until about 1942, or shortly after hostilities were commenced. At that time a fence was constructed around the mill for the purpose of protecting the mill property and keeping out all persons except employees or others having legitimate business on the premises. Gatekeepers were employed so as to prevent anyone entering the premises without a pass. Very little physical or mental effort is required to hold this job. No previous experience or training is necessary. During the greater portion of the time the gatekeeper sits in a chair. He is paid by the hour and any time lost is deducted from his wages. From March, 1942, to the time of the trial plaintiff received as gatekeeper from $20.80 to $24.70 per week, or approximately half what he would have earned...
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