Mccutchen v. Pac. Mut. Life Ins. Co

• Decision Date: 13 December 1929
• Docket Number: (No. 12786.)
• Citation: 151 S.E. 67
• Parties: McCUTCHEN. v. PACIFIC MUT. LIFE INS. CO.
• Court: South Carolina Supreme Court

151 S.E. 67

McCUTCHEN.

v.PACIFIC MUT. LIFE INS. CO.

(No. 12786.)

Supreme Court of South Carolina.

Dec. 13, 1929.

Cothran, J., dissenting.

Appeal from Common Pleas Circuit Court of Lee County; R. W. McLendon, Special Judge.

Action by Thomas E. McCutchen against the Pacific Mutual Life Insurance Company.From a judgment for plaintiff, defendant appeals.Affirmed.

The charge was as follows:

"Gentlemen, this is an unusual duty for me, but it becomes my duty to charge you as to the law governing the issues involved in this case, and it is right smart of a task.What I shall say to you will not be offhand, but will be almost entirely in writing.I have done that for the purpose of saying as exactly as I can what I should say to you.Now you don't have to listen at the lawyers in the case, but you are almost compelled to listen at what I have to say, whether you want to or not, because you must make a finding in the light of the law—that is, according to the testimony, governed by the law as I shall give it to you.Now I will try not to go too fast, and I shall try to emphasize certain things, so that you may fully understand it.

"The plaintiff, Thomas E. McCutchen, brings this action against the Pacific Mutual Life Insurance Company of California, alleging that the defendant is a corporation and is engaged in the business of insuring persons against loss of life, health, earning capacity, and disabilities caused by accidental bodily injury and disease, and that it is doing business in Lee county, S. C.

"He further alleges that, in consideration of the payment of the annual premium of $234.80, the defendant issued to him a certain insurance policy, dated on the 7th day of March, 1924, whereby it insured his life; and he states that said policy contained a total disability clause, whereby the defendant agreed that, in the event that the plaintiff should become totally disabled from accident or disease, to pay to the plaintiff a monthly sum of $75, during the continuance of such total disability, and to waive the payment during such total disability of all premiums thereafter becoming due on said policy or during the continuance of such disability; and he further states that he has paid the defendant all of the premiums becoming due on this policy pursuant to its requirements.

"He alleges that on or about the 10th to the 15th day of June, 1927, he became totally disabled by reason of disease, and that since that time he has been entirely unable to perform any work or engage in any occupation or profession for wages, compensation, or profit, and that such disability is total and has continued from said time and still continues, and that by reason thereof he Is entitled to be paid by the defendant the sum of $75 per month from the date of such disability.

"He further alleges that about the middle of September, 1927, he made proof of the disability above referred to, and made demand upon the defendant for the payment of the indemnity sum of $75 per month, which demand was refused.

"He states that since the commencement of this action, and before March 17, 1928, in order to protect his rights under said policy, he paid the premium claimed by the defendant as due on March 17, 1928, in the sum of $234.80, which payment he alleges was made under protest and with the understanding that he waived no right claimed under the policy by reason of such disability; but that he made such payment to prevent the defendant from claiming that the policy had lapsed, and that he made the payment with notice that suit would be brought to recover it back.

"He states that the amount due up to the 1st day of June, 1928, is the sum of $900 monthly indemnity, and the sum of $234.80, which was paid as a premium, together with interest on all of these amounts, and he prays for judgment in the sum of $1,134.80 and interest.

"Now the defendant comes in and answers the complaint which I have stated the substance of; this answer being the defendant's pleadings with reference to the matters al-leged in the complaint.In its answer the defendant denies every allegation in the complaint which it does not thereinafter specifically admit.Then the defendant specifically admits by its answer so much of paragraph 1 as alleges that the defendant is a corporation organized and existing under the laws of California, and is engaged in the business of insuring persons against loss of life, health, earning capacity and disabilities caused by accidental bodily injury and disease.

"It further admits so much of paragraph 2 as alleges that on or about the 17th day of March, 1924, the defendant, in consideration of the payment by the plaintiff of the sum of $234.80, issued its certain policy of insurance covering the life of the plaintiff, said policy being numbered 536021; and it further alleges that such disabilities as it contracted to insure against are fully set out in the policy of insurance on page 2 of the same, a part of said provision being as follows—I will read from the answer of the defendant(reading):

" 'Permanent Total Disability Benefit.Should the Insured, before the anniversary of this Policy nearest the date on which be shall attain the age of sixty years and while this Policy is in full force and no premium thereon in default, become permanently totally disabled, as hereinafter defined, The Company, subject to the conditions hereinafter set forth, will waive the payment of all future premiums required under the conditions of the policy as they become due and pay the insured a monthly income of $75, such waiver to be effective and the first of such monthly income payments to become due and the period of liability to commence as of the date of receipt at the Home Office of the company of due written proof of such disability and a subsequent payment to be made on the first day of each month thereafter during the continuance of such disability.Such waiver of premiums and income payments shall not affect any other benefits or values provided under the policy.

" 'Permanent total disability, as used herein, is defined to mean:

" '1.Disability caused by accidental bodily injury or disease which totally and permanently prevents the insured from performing any work or engaging in any occupation or profession for wages, compensation or profit; or

" '2.Disability caused by accidental bodily injury or disease which totally prevents the insured from performing any work or engaging in any occupation or profession for wages, compensation or profit and which shall have totally and continuously so prevented the insured for not less than ninety days immediately preceding the date of receipt of due written proof thereof; or

" '3.The irrecoverable loss of the entire sight of both eyes, or the amputation at or above the wrist or ankle of both hands or both feet or a hand and foot, if such loss or amputation is caused by accidental bodily injury or disease.'

"And it denies each—that is, the defendant—and it denies each and every other allegation contained in paragraph 3; that is, of the complaint.

"The defendant in paragraph 5 of its answer admits so.much of paragraph 4 of the complaint as alleges that the plaintiff, during the month of September, 1927, made claim and demand upon it for the payment of $75 per month; but it denies any liability to said plaintiff, for the reason that it alleges that the said plaintiff is not now, nor has he been at any time during the life of the said policy of insurance, totally and permanently disabled, as stipulated in said policy; and it denies each and every other allegation contained in paragraph 5 of the complaint.

"Thus, gentlemen, it is seen that certain allegations of the complaint are admitted by the defendant and certain other material allegations are denied.By the denial of the material allegations of the complaint the plaintiff is put to the proof of such allegations; and it is incumbent upon him to prove such material matters as are denied by the greater weight of the evidence or the preponderance of the evidence.The expression, 'greater weight or preponderance of the evidence, ' means just what it says; that is, that, if the weight of the evidence of the defendant's side equals the weight of the evidence on the plaintiff's side, the scales would be balanced, and the plaintiff under such circumstances will have failed to establish the matters required to be established by the greater weight of the evidence.In other words, to determine the greater weight of the evidence, the jury must imagine a scale by which the evidence on each side is accurately weighed, and in their mind they put the evidence of the plaintiff on one side of the scale and the evidence of the defendant on the other, and, if the side of the scale containing the evidence of the plaintiff does not go down and outbalance the evidence on the part of the defendant, then the plaintiff has failed to produce the required degree of proof to establish his case, and the recovery in such case would be for the defendant.

"A policy of insurance is a contract, and, when parties enter into a contract and define their rights and duties by the terms of that contract, then it is the purpose of the law to hold both to the performance of the terms of the contract which they have voluntarily entered into.The parties have fixed their rights by the four corners of the contract, and the court and the jury must look to the contract for the determination of the rights of the parties.It is admitted in this case that the policy of insurance which has been introduced in evidence was issued to the plaintiff by the defendant, in consideration of the pay-ment of $234.80 premium, and that to keep said contract or policy of insurance in force it was necessary for the plaintiff to annually pay this premium to the defendant, unless by the terms of the policy the payment of that premium was for any purpose waived or dispensed with, and, if it was, then the contract would...