Garrett v. Mutual Ben. Life Ins. Co. of N. J.

• Court: South Carolina Supreme Court
• Writing for the Court: LEWIS; TAYLOR, C. J., and MOSS; BUSSEY; BUSSEY
• Citation: Garrett v. Mutual Ben. Life Ins. Co. of N. J., 124 S.E.2d 36, 239 S.C. 574 (S.C. 1962)
• Decision Date: 14 February 1962
• Docket Number: No. 17876,17876
• Parties: William M. GARRETT, Respondent, v. The MUTUAL BENEFIT LIFE INSURANCE COMPANY OF NEW JERSEY, Appellant.

Page 36

124 S.E.2d 36

239 S.C. 574

William M. GARRETT, Respondent, v. The MUTUAL BENEFIT LIFE INSURANCE COMPANY OF NEW JERSEY, Appellant.

No. 17876.

Supreme Court of South Carolina.

Feb. 14, 1962.

Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, for appellant.

Paul M. Moore, Matthew Poliakoff, Spartanburg, for respondent.

LEWIS, Justice.

This is an action by the plaintiff, William M. Garrett to recover disability benefits under several policies of insurance issued to him by the defendant, The Mutual Benefit Life Insurance Company of New Jersey. The policies of insurance issued by the defendant provided for a total payment of $250 per month to plaintiff and waiver of premiums upon his becoming totally and permanently disabled within the meaning of the policy provisions. During the trial of the case the defendant moved for a directed verdict in its favor upon the ground that the only reasonable inference to be drawn from the testimony was that the plaintiff was not totally and permanently disabled. This motion was denied and the issues submitted to the jury, resulting in a verdict for the plaintiff. Subsequently, the defendant unsuccessfully moved for judgment in its favor notwithstanding the verdict or, in the alternative for a new trial, the latter motion made upon the ground that the trial Judge committed error in several rulings made during the trial of the case. The defendant has appealed from the refusal of the lower Court to grant either of the aforesaid motions.

The first question for determination is whether or not the trial Judge erred in refusing the defendant's motion for a directed verdict. The jury has concluded that the plaintiff was totally and permanently disabled within the meaning of the policy provisions and we are only concerned with whether or not there is any competent evidence to sustain such finding. Of course, it is well settled that, in deciding the question, the evidence and the reasonable inferences to be drawn therefrom must be considered in the light most favorable to the plaintiff.

The policies in question have identical provisions, and provide for the payment to the insured of the monthly income set forth in the respective policies 'while the insured is regarded as totally and permanently disabled'. Total disability is defined in the policies as follows:

'The insured will be regarded as totally disabled when, by reason of accidental bodily injury or by sickness, his average monthly earned income for a period of four months has not exceeded one-fourth of his former earned income (averaged monthly for the twelve months immediately preceding such four months) and such disability will be regarded as permanent while the earned monthly income of the insured, on account of such injury or sickness, does not exceed the said one-fourth.'

The term 'earned income', as used in the foregoing provision, is defined in the policies as follows:

'As herein used the term 'earned income' means wages, salaries, professional fees, and other amounts, received as compensation for personal services actually rendered in any profession, trade or business, not including therein amounts received as a pension or retirement allowance, or as a temporary continuance in whole or in part of customary earned income during the insured's enforced absence from business on account of accidental bodily injury or sickness.'

Total disability is, therefore, defined by the foregoing policy provisions to mean inability by reason of accidental bodily injury or sickness to earn in excess of one-fourth of the insured's former earned income, and such disability is regarded as permanent while the earned monthly income of the insured, on account of such injury or sickness, does not exceed the said one-fourth. 'Earned income' of the insured is not confined to wages, salaries or professional fees received as compensation for personal services from the particular business in which the insured was engaged at the time he became disabled, but includes 'compensation for personal services actually rendered in any profession, trade or business.'

Such policy expressions as 'any profession, trade or business' have been interpreted 'to mean the usual employment of the particular person insured, or such other employment, if any, reasonably approximating the same livelihood, as the insured might fairly be expected to follow in view of his station, circumstances, training, aptitude and physical and mental capabilities.' Dunlap v. Maryland Casualty Co., 203 S.C. 1, 25 S.E.2d 881, 149 A.L.R. 1.

Total disability, therefore, under the particular policy provisions in question, does not mean inability to receive any earned income because of injury or sickness, but inability for such reasons to earn in excess of one-fourth of the insured's prior income, either from his customary employment or from any other employment in a profession, trade or business for which his training and aptitude fit him. The question then to be decided is whether or not there is any competent evidence to sustain the finding of the jury that the plaintiff was, on account of sickness, unable to earn in his usual employment, or in any other employment for which his training and aptitude fitted him, in excess of one-fourth of his former income. The issues must be determined in the light of these particular policy provisions.

The plaintiff is forty-one years of age, married and has four children. He is a college graduate with some work completed toward his Master's degree. After his graduation from school in 1939, he worked approximately fifteen years at various jobs. He worked for his last employer for approximately four and one-half years as a district sales manager, travelling over an area of five states. His earnings in this position during the last full year of employment amounted to Nine Thousand Eight Hundred and Sixty-five ($9,865.00) Dollars. Prior to his last position, the plaintiff worked at various times as an assistant to a certified public accountant, salesman for a soap company, payroll auditor for an insurance company, Internal Revenue agent, and a used car salesman. It is undisputed that the plaintiff is well educated and is by training and experience qualified to perform other work than that in which he was last engaged, including general office work. On March 5, 1954 the plaintiff became totally disabled because of a ruptured intervertebral disc and varicose veins in his left leg. It is undisputed that such disability continued until December 5, 1959 and the defendant made payment to the plaintiff of all disability benefits due during such period. It is undisputed that the plaintiff is still suffering from the reptured disc and varicose veins. However, after December 5, 1959 the payment of disability benefits was discontinued, the defendant taking the position that the plaintiff was no longer disabled within the terms of the policy provisions. This action was instituted on April 21, 1960 to recover benefits allegedly due for the period from December 5, 1959, the date of the last payment by defendant, until the date of the institution of this action. The issue here concerns the alleged disability of plaintiff for that period.

The plaintiff testified in detail as to his physical condition and his inability to work because of it since 1954. He testified that he suffered almost constant pain in his back making it impossible for him to relax, the pain radiating down both legs, but worse in the left, causing his legs to jerk and tremble at times. He further testified that he was subject to severe headaches and could only read for a short time because of the effect of the pain upon his eyes; that he is unable to sleep at night because of the intense pain; that the pain is such that he has to change his position often and lie down frequently to relieve it; and that he has a hernia.

The first medical examination of the plaintiff at the instance of the defendant was in 1954. As a result of this examination he was declared totally disabled and the defendant began paying disability benefits called for under the policies. During the period from March 5, 1954 until December 5, 1959, the plaintiff submitted himself at the request of the defendant to approximately ten physical examinations by various doctors selected by the defendant. None of these examinations affected the payment of benefits under the policies until the last one in 1959 by Dr. Tiller of Spartanburg, South Carolina, after which the defendant discontinued further payments. Dr. Tiller had never examined the plaintiff before or since and after less than a one hour examination testified, as his opinion, that the plaintiff was not then totally disabled but was able to carry on a reasonable occupation, one that did not entail any serious or strenuous bending, lifting or straining'. There was other medical testimony that the plaintiff was able to do work of a sedentary nature. The medical testimony was in agreement, however, that the plaintiff suffered from a ruptured intervertebral disc and a serious condition of varicose veins in his left leg, such conditions being of the type to cause pain. One doctor described the varicose veins as the largest that he had ever seen.

The testimony is in substantial agreement that the plaintiff is unable to perform the duties of a travelling salesman, the occupation in which he was last engaged. The defendant argues, however, that the plaintiff is not totally disabled from engaging in other types of work for which his training and experience fit him, because of the medical testimony that plaintiff, in the opinion of the doctors, could engage in work of a sedentary nature that did not require strenuous physical exertion.

We do not think that the medical testimony is conclusive of the question as to the extent of plaintiff's disability. All of such testimony agrees that the plaintiff is suffering from a ruptured disc and varicose veins, and has...