Mallinger v. New York Life Ins. Co., 17042

• Decision Date: 27 July 1955
• Docket Number: No. 17042,17042
• Citation: 227 S.C. 530,88 S.E.2d 578
• Parties: Joseph MALLINGER, Respondent, v. NEW YORK LIFE INSURANCE COMPANY, Appellant.
• Court: South Carolina Supreme Court

Page 578

88 S.E.2d 578

227 S.C. 530

Joseph MALLINGER, Respondent, v. NEW YORK LIFE INSURANCE COMPANY, Appellant.

No. 17042.

Supreme Court of South Carolina.

July 27, 1955.

Thomas, Cain & Nettles, Columbia, for appellant.

Whaley & McCutchen, Columbia, for respondent.

OXNER, Justice.

This is an action to recover disability benefits under two policies of insurance issued in April, 1930, by the New York Life Insurance Company to Joseph Mallinger, who was then about 32 years of age. The policies provided for insurance on his life in the aggregate amount of $15,000 and, under the disability clauses, for the waiver of premiums and payments of $150 a month in the event that he became totally and permanently disabled before age 60, and before the maturity of the policies. They matured as an endowment on April 1, 1950 and the face amounts were paid to the insured.

In May, 1932, or about two years after the issuance of the policies, insured claimed that he became totally and permanently disabled and filed claims for disability benefits, which the Company paid uninterruptedly from May, 1932, through July, 1951. It then refused to make further payments. The insured now seeks to recover disability benefits from August, 1951 to October, 1952, the date of the commencement of this action. In its answer the Company denied that the insured had been totally disabled since January, 1951, and alleged that on that date he assumed a gainful occupation. The Company further set up a counterclaim for payments made from January through July, 1951, alleging that these payments were made without knowledge of the insured's state of health and the extent of his activities. The insured entered a general denial to this counterclaim.

The case was tried on March 12, 1954. At the conclusion of the testimony each side made a motion for a directed verdict. That of the Company was refused. The motion of the insured was granted and he was awarded judgment for $2,250, plus interest. The Company has appealed, contending that the question of total and permanent disability should have been submitted to the jury.

Respondent was born in Pittsburgh, Pennsylvania. His education did not extend beyond the fifth grade. When sixteen, he married and now has two children. Early in life he secured a job with a firm engaged in dismantling buildings, bridges, coal mines and machinery. Later he went into this business for himself and, with the exception of the year 1917 when he was employed as a policeman by the City of Pittsburgh, was continuously so engaged until May, 1932. During that month he claims that while at work, he accidentally inhaled cyanide potassium fumes. He was immediately taken to a hospital in Pittsburgh, where he remained until the following November. The physicians there diagnosed his illness as anxiety neurosis and also found that his heart was damaged. Since then he has been more or less constantly under the care and attention of a number of physicians. He claims to have broken his back in 1946, necessitating wearing a brace, and to also have developed arthritis of the spine. According to the medical testimony, he is now suffering from anxiety neurosis, heart disease, arthritis and nephritis. The physicians who attended him were unanimously of opinion that he is now, and has been since May, 1932, unable to engage in any gainful occupation.

After leaving the hospital in 1932, respondent spent considerable time at Cambridge Springs, Pennsylvania, a resort community about one hundred miles from Pittsburgh. His family continued to reside in Pittsburgh where his wife carried on the dismantling business until 1946.

Beginning about 1936, respondent went to Florida nearly every winter to escape the severity of the Pennsylvania climate. In recent years he has spent most of his time in Florida. He testified that during 1950, he obtained employment at several places but after a few days had to quit because of his inability to do the work. It is undisputed, however, that he was employed as a policeman by the town of Surfside, Florida, from December 31, 1950, to August 7, 1951, at a salary of $275 a month. The only time lost during this period was two weeks in March, 1951, when he was treated in a hospital for his injured back.

Briefly, the situation is this: The attending physicians, some of whom are outstanding specialists in their fields and others general practitioners, expressed the opinion that since May, 1932, respondent has been physically unable to engage in any gainful occupation. To this is to be added the fact that he did not work until the latter part of 1950. But from December 31, 1950, to August 7,...