Du Rant v. Aetna Life Ins. Co.

• Decision Date: 16 July 1932
• Docket Number: 13443.
• Parties: DU RANT v. ÆTNA LIFE INS. CO.
• Court: South Carolina Supreme Court

164 S.E. 881

166 S.C. 367

DU RANT v. ÆTNA LIFE INS. CO.

No. 13443.

Supreme Court of South Carolina

July 16, 1932

Appeal from Common Pleas Circuit Court of Richland County; M. S Whaley, Judge.

Action by Dudley Du Rant against the Ætna Life Insurance Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded, with direction.

McKay & Manning, of Columbia, for appellant.

U. L Rast and C. T. Graydon, both of Columbia, for respondent.

BONHAM J.

The respondent was employed at Pacific Mills, Columbia, S. C. and was insured under a group policy which provided that, if any employee of the Mill, before attaining the age of 60 years, or while insured under their policy, became totally disabled and therefore was unable to engage in any occupation or employment for wage or profit (italics added), he should be entitled to receive from the insurance company the sum of $1,000. Plaintiff by his complaint alleged that while he was in the employ of the Pacific Mills, and before he attained the age of 60 years, to wit, on or about the 19th day of June, 1930, he became totally and permanently disabled under the conditions and terms of said policy. The company refused to pay him, and he brought this action. On motion of defendant plaintiff was required to make his complaint more definite and certain by stating the nature and cause of his alleged disability. The amended complaint set forth that the alleged total and permanent disability was a result of high blood pressure, chronic myocarditis, chronic interstitional nephritis, and syphilis. The answer to the amended complaint was a general denial.

The case was heard by Judge Whaley in the county court of Richland county, with a jury. At the close of the testimony for plaintiff, counsel for defendant made a motion for nonsuit on the ground that "there is not sufficient evidence of total and permanent disability."

The motion was refused; the presiding judge saying "That makes a matter of evidence for a very weak case, but it does not make his evidence fall down, so as to say there is none. Under the doctor's testimony, I keep in mind when I handle a matter as a question of law, where there is something very obvious, such as that foot and boon case, but when it comes to a matter of disease the doctor has to tell me about that. If he says that is there and permanently, the fact that a man goes ahead and works from time to time is no evidence that has to be set up against what the doctor says and that can overcome it entirely. I cannot do that. There is evidence to go to the jury. Of course, all that evidence weakens his case and weakens the doctor's conclusion, but it is for the jury to weigh and not for me."

At the conclusion of all the testimony defendant's counsel made a motion for directed verdict for defendant on the same grounds upon which the motion for nonsuit was predicated and the additional ground that "it is now shown that this policy of insurance was cancelled prior to the time the man became disabled." The motion was refused.

The jury found for the plaintiff the amount sued for. Motion for new trial was denied. This appeal followed.

There are four exceptions. Appellant's counsel in their brief say: "All four exceptions may be grouped under one heading: There was not sufficient evidence of total and permanent disability on 28th of June, 1930, to warrant that issue being submitted to the jury in view of the undisputed facts that a month thereafter plaintiff was able to begin work and continue almost uninterruptedly for approximately eight weeks, when he was discharged for drinking on the job."

The court is confronted in this appeal with the decision of the question whether a medical theory of the total and permanent disability of a person is potent to overcome the undisputed evidence of the physical fact that the person was able, after he was alleged to be disabled to perform the same sort of work he was always accustomed to do.

The plaintiff was discharged from his employment the 19th day of June, 1930. He alleges in his complaint that on or about that very day he became totally and permanently disabled under the terms of the policy, which terms are that such disability rendered him unable to engage in any occupation or employment for wage or profit. His medical witness says this is so because plaintiff had high blood pressure, myocarditis, interstitional nephritis, and syphilis, and had had these since he first examined him in February, 1930. Yet he worked from then till he was discharged on June 19th, and again when employed for eight weeks at similar work.

In the case of Davis v. Metropolitan Life Insurance Co., 164 S.C. 444, 162 S.E. 429, 431 (the last utterance of this court on this subject), the court said: "the insured is deemed 'totally disabled' when he is no longer able to do his customary tasks and such work as he has only been trained to do and upon which he must depend for a living."

In that case Davis was in the employ of the express...