Equitable Life Assur. Soc. v. Singletary, 3607.

• Decision Date: 11 June 1934
• Docket Number: No. 3607.,3607.
• Citation: 71 F.2d 409
• Parties: EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES v. SINGLETARY.
• Court: U.S. Court of Appeals — Fourth Circuit

71 F.2d 409 (1934)

EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES v. SINGLETARY.

No. 3607.

Circuit Court of Appeals, Fourth Circuit.

June 11, 1934.

H. J. Haynsworth, of Greenville, S. C. (C. F. Haynsworth, of Greenville, S. C., on the brief), for appellant.

James H. Price, of Greenville, S. C. (James D. Poag and W. A. Bull, both of Greenville, S. C., on the brief), for appellee.

Before PARKER and SOPER, Circuit Judges, and MEEKINS, District Judge.

SOPER, Circuit Judge.

This is an action to recover upon a policy of group life insurance issued by defendant to the Southern Railway Company for the benefit of its employees. The plaintiff held a certificate under this policy insuring his life in the amount of $5,000 and containing a provision for payment of the full principal sum upon proof of total and permanent disability. In April, 1932, plaintiff brought this suit in the court of common pleas of Greenville county, S. C., to recover the full amount under the policy, alleging that he became totally and permanently disabled while in the employ of the railway, and the cause was removed to the District Court upon the ground of diversity of citizenship. Trial before a jury resulted in a verdict and judgment for the plaintiff, and defendant has taken this appeal relying principally upon the refusal by the trial court of its motion for directed verdict, urged upon the ground that there was no substantial evidence of total and permanent disability while plaintiff's certificate was in force.

The policy contained, in paragraph 10, the usual disability provision, to the effect that: "If proof shall be furnished the Society that any employee insured under this policy has before having attained the age of 60, become wholly disabled by bodily injuries or disease, and will be wholly and presumably permanently prevented thereby for life from pursuing any and all gainful occupations, the Society will pay * * * the full amount of the insurance on such life." Paragraph 7 of the policy provides that: "The insurance under this policy upon the life of any employee covered by this contract shall automatically cease and determine * * * upon termination of such person's employment with the employer. * * *" Premiums on the policy were paid monthly in advance by the employer and were deducted from the pay of employees.

Plaintiff was in the employ of the Southern Railway for seventeen years, and at the time of the trial was 51 years old. His position was that of chief clerk to the roadmaster at Greenville, S. C., and his duties were almost exclusively clerical, consisting in the main of bookkeeping and stenography. On June 8, 1931, a dispute arose between plaintiff and his superiors as to the application of a small amount of money some years before, and plaintiff was discharged from the service. The evidence is conflicting as to whether plaintiff was informed of his discharge on that day, but it is established beyond question that the discharge became effective at least by June 15, 1931, the date to which his salary was paid. The slight difference in dates is not material in this case.

In the short interval between June 8th and 15th, plaintiff made a number of efforts to adjust the matter of his discharge, going first, on the afternoon of June 8th, to see the chief engineer of maintenance of way and structures on his private car in the Greenville yards. An unsuccessful conference there was interrupted by the starting of the train, and the plaintiff alighted while the train was in motion. According to his evidence, he struck his knee against a small right of way post in doing so, and the blow caused him considerable pain. The injury consisted of an internal derangement of cartilage at the knee joint, later causing water on the knee, and plaintiff was required to use a cane thereafter when walking. On the next day, however, June 9th, plaintiff made a trip to Charlotte, N. C., in a further effort to get back or retain his job, and he did not go to a doctor until that afternoon. He received further treatment for his knee from his family physician on June 17th and 19th, and on September 8th, went to see Dr. White, a bone specialist in Greenville, who advised an operation. So far as appears, none had ever been performed up to the time of the trial.

There is no evidence, beyond the broad assertion made by plaintiff and his wife that he was unable to work after June 8, 1931, to show that the injury to plaintiff's knee alone rendered him totally and permanently disabled. While painful, it did not altogether prevent him from walking; and he was seen walking with a cane that summer at his place in the mountains, by a number of witnesses. In December, 1931, he went hunting. His own physician declined to testify that the knee injury alone would prevent plaintiff from performing the clerical work to which he was accustomed, and admitted that the condition could be cured by an operation. This view is in accord with medical testimony offered by the defendant that plaintiff could walk to work and successfully perform clerical duties, and that an operation would restore the...