Brown v. Missouri State Life Ins. Co.

Decision Date22 July 1926
Docket Number12040.
Citation134 S.E. 224,136 S.C. 90
PartiesBROWN v. MISSOURI STATE LIFE INS. CO.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Barnwell County; John S Wilson, Judge.

Action by Forest S. Brown against the Missouri State Life Insurance Company. Judgment of magistrate's court for plaintiff was affirmed by the circuit court, and defendant appeals. Affirmed.

Thos M. Boulware, of Barnwell, for appellant.

Harley & Blatt, of Barnwell, for respondent.

RAMAGE A. A. J.

This is an appeal from the judgment of Judge Wilson, affirming a judgment of the magistrate's court, in which plaintiff obtained judgment for $75 against the defendant. At the outset we are met with the question as to the power of this court. The rule is: This court cannot consider, on appeal from magistrate's court, a question of fact. State v Leak, 62 S.C. 405, 40 S.E. 774; State v. Burch, 43 S.C. 3, 20 S.E. 758; Zimmerman v. Ry., 59 S.C 277, 37 S.E. 834.

"It is not error to affirm a magistrate judgment where there is any evidence to support it." State v. Easterlin, 61 S.C. 71, 39 S.E. 250.

" Where a finding by the circuit court on appeal from magistrate [court] is supported by any evidence, it is final." Saunders v. Ry. 90 S.C. 79, 72 S.E. 637; Munn v. Crow, 87 S.C. 246, 69 S.E. 229.

Plaintiff's said policy contained the following provision:

"If the said insured shall become totally and permanently disabled before attaining the age of sixty, *** the total and permanent disability referred to herein may be due either to bodily injuries or disease occurring and originating while this contract is in full force, *** and must be such as to prevent the insured from engaging in any gainful occupation."

"The rule prevailing in most jurisdictions is that the 'total diability' contemplated by an accident insurance policy does not mean, as its literal construction would require, a state of absolute helplessness which can result only from loss of reason, since, as long as one is in full possession of his mental faculties, he is capable of transacting some part of his business, whatever it may be, although he is incapable of physical action. On the contrary, these courts, giving consideration to the object of the contract, hold that the 'total disability' contemplated by the agreement is inability to do substantially all of the material acts necessary to the prosecution of the insured's business or occupation, in substantially his customary and usual manner." Berry v. United Life & Acc. Ins. Co. 120 S.C. 328, 113 S.E. 141; note 7, Ann. Cas. 815; 14 R. C. L. 1315 and 1316.

"If the prosecution of the business required the insured to do several acts and perform several kinds of labor, and he is able to do and perform one only, he is as effectually disabled from performing his business as if he were unable to do anything required to be done, and while remaining in that condition he suffers loss of time in the business of his occupation. Nor does the provision contemplate absolute physical disability to transact any kind of business pertaining to one's occupation, but it is sufficient if his injuries are such that common care and prudence require him to desist from transacting any such business in order to effect a cure." 14 R. C. L. 1316.

The test laid down in Taylor v. Ins. Co. 106 S.C. 356, 91 S.E. 326, L. R. A. 1917C, 910, is:

"He is deemed totally disabled when he is no longer able to do his accustomed task, and such work as he has only been trained to do, and upon which he must depend for a living,"

And, further:

"It would be like squaring the circle for a Judge to undertake to say just at what junction a part became a whole, at what period a disability is enlarged from partial to total."

Let us see whether or not there is "some evidence to support the finding on circuit." Munn v. Crow, 87 S.C. 246, 69 S.E. 229.

Dr. Owens testified:

"I treated Brown for chronic malaria in early part of 1924. Some weeks later he returned with a new condition, and I found him suffering from multiple neuritis enveloping mainly his lower limbs. I treated him in hospital for about three
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    ... ... 328, 113 S.E. 141, the court defined "total ... disability" as not meaning a state of absolute ... helplessness. In McCutchen v. Pacific Mut. Life Insurance ... Co., 153 S.C ... necessary." ...          In ... Brown v. Missouri State Life Insurance Co., 136 S.C ... 90, 134 S.E. 224, 225, it is said: "If the ... ...
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