Marshall v. Kansas City Life Ins. Co.

• Decision Date: 19 January 1934
• Docket Number: 13759.
• Parties: MARSHALL v. KANSAS CITY LIFE INS. CO.
• Court: South Carolina Supreme Court

172 S.E. 504

171 S.C. 321

MARSHALL v. KANSAS CITY LIFE INS. CO.

No. 13759.

Supreme Court of South Carolina

January 19, 1934

Appeal from Common Pleas Circuit Court of Lancaster County; W. H Townsend, Judge.

Action by W. B. Marshall against the Kansas City Life Insurance Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Benet Shand & McGowan, of Columbia, for appellant.

Gregory & Gregory, of Lancaster, for respondent.

CARTER Justice.

This action by W. B. Marshall, as plaintiff, against Kansas City Life Insurance Company, defendant, commenced in the court of common pleas for Lancaster county, September, 1932, is a suit to recover under the disability provisions of a policy of life insurance issued by the defendant. Issues being joined the case was tried at the March, 1933, term of said court before Hon. W. H. Townsend, circuit judge, and a jury resulting in a verdict for the plaintiff for the amount involved. From judgment entered on the verdict the defendant has appealed to this court and asks a reversal of the said judgment upon the grounds stated in the exceptions.

The position of the appellant, as appears from appellant's brief, is that the exceptions raise the following questions:

"1. Was the plaintiff, a farmer, totally disabled within the definition of that term as adopted by this Court and under the terms of the policy, by the loss of four fingers on his left hand, when he was able to partially at least perform practically all of his accustomed duties, and outside work as well?

"2. Was the plaintiff entitled to recover for total disability for loss of four fingers when the policy states certain injuries which will constitute total disability, and the injury to the plaintiff was not one of the included injuries?"

In answering these questions it is necessary to consider the same in connection with the following provisions in the insurance contract involved:

"Upon receipt at the Home Office of the Company, of the proof, upon blanks furnished by the Company for that purpose, that, after the payment of the first annual premium upon this policy, and before default in the payment of any subsequent premium, and while this policy is in force, and before the insured has attained the age of sixty years, the insured has become and is totally and permanently disabled by bodily injury or disease, except as hereinafter provided, and will be continuously and wholly prevented thereby for life from engaging in any occupation, employment or work for wages, gain or profit, and that such permanent and total disability has existed during the preceding period of thirty days, the Company will waive the payment of any subsequent premiums of this policy which fall due during the continuance of such total and permanent disability; and after the lapse of sixty days from the receipt of the aforesaid proof, if such total and permanent disability as herein defined has continued and then exists, the Company will pay the insured a monthly income of ten dollars per month for each $1,000.00 of the amount of insurance named on the first page of the policy, the first of such monthly income payments to be made immediately upon approval of claim therefor, and a like amount on the corresponding day of each calendar month thereafter during the continuance of such total and permanent disability and the life of the insured, or until the maturity of this policy as Endowment.

"The complete loss of the sight of both eyes, or of both hands, or of both feet, or of one hand and one foot, shall be deemed total and permanent disability hereunder."

In response to the allegations of the complaint, the plaintiff offered testimony tending to show, in effect, that subsequent to the issuance of the policy involved, and while the same was in full force and effect, the insured, on or about January 29, 1932, became permanently disabled by reason of injury to his hand, caused from a gunshot wound. In response to questions as to what effect this injury had upon the insured in making a living, the insured testified, in part, as follows:

"Q. Mr. Marshall, what occupation were you engaged in when you took out this insurance policy? A. Farming.

"Q. What was the nature of the work you performed personally at that time, Mr. Marshall? A. Well, all duties of farm work-- plowing, hoeing and picking cotton.

"Q. Enumerate the various details you did yourself in connection with these duties? A. I did everything a farmer is supposed to do.

"Q. Enumerate them, what they are. A. I plowed, picked cotton, hoed, planted cantaloupes, hoed cantaloupes, plowed cantaloupes, hauled hay, and all other work that goes in connection with farming.

"Q. State whether or not you chopped wood? A. Yes, sir; I certainly did; I didn't have anybody else to chop it for me.

" Q. Were you doing those details yourself before January 29th, up to January 29, 1932? A. Yes, sir.

"Q. State whether or not you are able to do those things now, since your injury--state whether or not you have been able to do these things since your hand was injured, Mr. Marshall. A. I haven't.

"Q. State which of

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