O'Kelley v. Mutual Life Ins. Co. of New York

• Decision Date: 05 May 1941
• Docket Number: 15253.
• Citation: 14 S.E.2d 582,197 S.C. 109
• Parties: O'KELLEY v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: South Carolina Supreme Court

14 S.E.2d 582

197 S.C. 109

O'KELLEY v. MUTUAL LIFE INS. CO. OF NEW YORK.

No. 15253.

Supreme Court of South Carolina

May 5, 1941

Thomas Cain & Black, of Columbia, and Wm. P. Baskin, Jr., of Bishopville, for appellant.

Henry C. Jennings, Ruffin & Munn, and R. W. McLendon, all of Bishopville, for respondent.

STUKES Justice.

Plaintiff now about sixty-two years old, was reared on a farm near Bishopville in this State which he left at the age of fourteen and thereafter attended college and graduated in dentistry, the practice of which he began in 1904, first in Alabama and finally in Miami and Miami Beach, Florida, where he lived and practiced his profession from 1915 to 1929.

In March, 1928, he obtained the policies of insurance from the defendant which are involved in this action. They contain provisions for payment under certain conditions of benefits for total disability which is defined as "any impairment of mind or body which continuously renders it impossible for the insured to follow a gainful occupation."

In the summer of 1929, the insured became ill to the extent that he was unable to continue his practice, was examined and treated by a number of physicians and closed his office in August of that year. Proofs of his condition were furnished the defendant and it began the payment in March, 1930, of the disability benefits and continued the same through May 13 1940, when it declined further payment and this action was thereafter commenced by the service of the summons and complaint in July of that year for the benefits accruing for the months of June and July.

Meanwhile, in the summer of 1930, plaintiff moved from Miami to the farm in Lee County which he had inherited and after about five years moved from the farm into the town of Bishopville. During the approximate ten year period of payment of the disability benefits by the insurer, it required the furnishing several times each year by the plaintiff of information as to his condition, including reports of examinations by his physician and by physicians designated by the insurer.

By his complaint the plaintiff demanded also the return to him with interest of premiums paid under protest about June, 1940, the payment of which had been waived by the company under the terms of the policies during the period of the payment of disability benefits.

The contention of the defendant, set up in its answer and thereby made the issue, is that the plaintiff is not now so totally disabled that he cannot follow a gainful occupation within the terms of the policies and, as developed by defendant's testimony, plaintiff was actually operating his farm, whereupon the liability for disability under the policies had ceased.

The case was tried at the fall, 1940, term of the Court of Common Pleas for Lee County and resulted in a verdict for the plaintiff. The defendant made timely motions for nonsuit and for direction of the verdict which were refused by the trial Judge, now made the basis of exceptions on this appeal from the judgment entered upon the verdict. Such makes the first question submitted to this Court by the appellant. For disposition of it at least brief reference to the testimony is necessary.

Two local physicians who had treated the insured over periods of the last several years before the trial testified to the effect that he was an ill man, suffering from angina, arteriosclerosis, diabetes, neuritis, arthritis and low blood pressure, and from such diseases was totally disabled to follow any gainful occupation, being thereby rendered nervous, weak and without physical resistance, and specifically that he could not do the work of a dentist or a farmer, and that this condition is permanent. One of these doctors lived next door to the plaintiff and both had seen him with attacks of angina (heart disease) on several occasions. One of them testified on cross examination to a report of an examination of the respondent in December, 1939, at Duke University Hospital, of X-ray pictures there made showing among other things evidence of hardening of the arteries and an electrocardiogram (picture or graph of the heart action), which latter showed no abnormality "except for the presence of the wave in the third lead, which is suspicious evidence of coronary disease."

A physician who took X-ray pictures of the respondent at Toumey Hospital in Sumter identified them and testified that they were made on May 30, 1939, and that they showed extensive arthritis of the spine and pelvis, swelling in the lower legs and a marked hardening of the arteries.

The respondent testified that he left Florida for his Lee County farm for higher altitude, quiet and the opportunity for exercise and stayed there about five years before moving to town, that the farm was operated under the supervision of at least two of his sons at all times, he having four and the two of them active on the farm at the time of the trial being twins twenty-eight years old, and another was thirty-two; that they had sharecroppers and wage hands and actually worked themselves, and that he did not operate or manage the farm and that because of severe pain, weakness and occasional lack of muscular control he could not work, but that he walked about the farm for diversion and exercise after which he was better able to rest at night.

His testimony was in great detail as to his symptoms and sufferings which need not be here repeated. On cross examination he testified that the farm contained about four hundred acres of which one hundred and thirty-five were cleared, that his sons rented some adjoining land and there were six work animals and a tractor used in cultivation by his sons of the usual crops and that he contracts with some sharecroppers, but the most of them deal with the sons and that he consults with the latter, and that he had been advised by the farm agent to sign the Government contracts which have lately been signed by his sons using the name of the respondent "and sons"; that he visits the farm frequently when able, but often is unable, sometimes for weeks at a time; that he and his sons "as a unit" finance the farm operations, that he sometimes lets them have money and they also make other arrangements, and that they market the farm products, sometimes consulting with him.

Two of respondent's sons testified that they and a third operated the farm as they had done since they moved there from Miami, and their father was more of a hindrance than a help, and they testified to attacks which he suffered on his irregular visits to the farm, some causing him to fall and they having to bring him back home, where he also frequently suffered similar attacks and they were occurring with greater frequency recently. To the latter effect respondent's wife also testified and that he is unable to work and does not visit the...