Moyle v. Mutual Life Ins. Co. of New York

• Court: South Carolina Supreme Court
• Citation: Moyle v. Mutual Life Ins. Co. of New York, 201 S.C. 146, 21 S.E.2d 561 (S.C. 1942)
• Decision Date: 11 August 1942
• Docket Number: 15450.
• Parties: MOYLE v. MUTUAL LIFE. INS. CO. OF NEW YORK.

21 S.E.2d 561

201 S.C. 146

MOYLE v. MUTUAL LIFE. INS. CO. OF NEW YORK.

No. 15450.

Supreme Court of South Carolina

August 11, 1942

Thomas Cain & Black, of Columbia, for appellant.

Roger M. Heyward, Paul A. Cooper, and D. M. Winter, all of Columbia, for respondent.

BAKER Justice.

In 1924, the appellant issued to the respondent three insurance policies containing total and permanent disability provisions. As hereinafter more fully set forth, the appellant paid to the respondent total and permanent disability benefits, and waived future premiums, in accordance with the provisions of the policies, for a period of years until April, 1940, when the appellant discontinued making payments and notified the respondent that it would no longer accord the waiver of premiums.

Separate suits were brought on the three policies, but by agreement the cases were tried together. After the rejection of motions by the appellant for a nonsuit and for a direction of verdict, the case was submitted to the jury, resulting in a verdict for the respondent for the amount of benefits claimed and of the premiums paid on the policies by the respondent after April, 1940, with interest on such sums. Judgment having been entered on the verdict, this appeal followed.

The respondent is forty-seven years old. When he was a small child he lost his right hand at the wrist. This of course was known to appellant when in 1924 it issued the policies now in question. In the early part of 1933 respondent sustained injuries to his left hand. Following such injuries, he made claim upon the appellant for the total and permanent disability benefits provided in his policies, these consisting of certain sums to be paid each month, and of the waiver of premiums during the continuance of the disability. The claim was approved, and until April, 1940, the appellant paid to the respondent the disability benefits provided by the policies, and also extended to him the benefit of the premiums waiver therein provided.

On or about April 1, 1940, the appellant notified the respondent that it would no longer make the disability payments, and would discontinue its waiver of the payment of premiums.

In his complaints the respondent alleges, without further describing his condition, that on or about February 15, 1933, within the stated provisions of the policies in question, he "received bodily injury from which he became totally and permanently disabled under the laws of the State of South Carolina." As a further ground of recovery he alleges "VII. That during the time the plaintiff was receiving the total and permanent disability benefits under said contract as hereinabove referred to, the defendant on numerous occasions withheld the monthly payments when due without explanation, notice or reason, and constantly and almost continuously had its agents or investigators questioning plaintiff's friends and neighbors as to plaintiff's activities, living habits, family relations and personal habits and that same together with numerous and frequent conferences with accredited representatives of defendant company so harassed and upset plaintiff that it caused his nervous system to become upset, wrecked and permanently impaired, as a result of which plaintiff has further become totally and permanently disabled within the terms and meaning of said contract."

And the testimony was directed to both of such asserted grounds of recovery.

The appellant admitted the issuance of the policies in question relying upon the policies themselves for the language of the total and permanent disability benefits expressed therein, and admitted that it paid such benefits and accorded the respondent the stipulated waiver of premiums until April 1, 1940, but it denied that the respondent has been totally and permanently disabled after such date. It also denied the allegations of Paragraph VII of the complaints as above quoted.

For all practical purposes it may be said that the exceptions of the appellant raise the single question whether the respondent is totally and permanently disabled within the following provision of the policies: "*** that he has become totally and permanently disabled by bodily injury or disease, so that he is, and will be, permanently, continuously and wholly prevented thereby from performing any work for compensation, gain or profit, and from following any gainful occupation ***."

In the early months of 1933, prior to the accident which resulted in the physical impairments upon which the respondent relies, the respondent was employed by Liggett & Myers Tobacco Company, which is one of the larger concerns engaged in the manufacture of cigarettes and other tobacco products. In varying capacities he had been so employed beginning in 1918. He worked himself up to successively higher positions and in 1919 he was sent by his employers to Columbia, being then transferred to the sales department. He worked as a retail salesman, calling on the trade all over the State, contacting consumers, arranging window displays, tacking up signs, etc., until May, 1923, when he was promoted to division manager in South Carolina in the cigarette department. In that capacity he supervised all of the salesmen in South Carolina, of whom the number varied between ten and eighteen. His work required him to travel about 30,000 miles a year, and although he had only one hand, he travelled by automobile, doing his own driving.

Respondent's work as division manager was described by him in part as follows: "*** That involved driving, the use of an automobile, travel, being away from home all the time, carrying a typewriter, using a typewriter a great deal too and numbers of things that would ordinarily fall to the lot of a man in charge of other men in performing work of that kind. I had to teach these men how to put in window displays, how to put up advertising material, how to sell tobacco products, what the tobacco products contained, how they were manufactured, how they were distributed throughout the retail and the wholesale business. I had to do all that and supervise that work. ***"

To indicate the specialized training involved in respondent's work, testimony was adduced to show that respondent's job required him to know a good deal about tobaccos and manufacturing processes. Respondent testified on this subject: "I think Liggett & Myers alone had some 40 brands of cigarettes and we had to learn those and the other companies' brands, too. We had to study those brands and we had to be in position to compare them. That is the work I referred to when I said consumers' work. We had to call on a consumer and show the cigarette and show the difference in the various brands of cigarettes."

In the early part of 1933, prior to respondent's accident, he was receiving a salary of $4,000 a year. He had also received a bonus each year, the average amount of which was about $600. There is testimony in the record indicating that in the spring of 1933, before the accident, respondent's employers either temporarily or permanently terminated the employment of the respondent because of the depressed business conditions then prevailing, but since the respondent's claim involved in the present appeal does not embrace the period intervening between the date of his suspension or discharge and the date of the accident, we do not deem such testimony material in the determination of the questions presented by the record.

In May or June, 1933, the respondent fell into a ripsaw, with the result that his left hand became mutilated. Describing the condition of the respondent as far as his hands are concerned, following the injury to the left hand, Dr. Frank Owens testified for respondent as follows: "Mr. Moyle has the entire loss of his right hand and part of his arm at about the beginning of the fista third of his arm, and he wears an artificial hand which is of no value except the looks of it and he also received an injury to his left hand in which he lost the third phalanges joint of the little finger, and a portion of the tarsal joint of the little finger, and he received some kind of injury to the next finger, probably a nerve injury which resulted in the contraction of the finger down into the palm of the hand and that injury has stiffened that finger and it is of no use and gets in the way of the use of the hand."

There is testimony to the effect as the result of the injury to his left hand respondent could not thereafter drive an automobile or obtain a license to drive one; that he was unable to operate a typewriter as he had previously done, or to handle packages of tobacco and make window displays as he had formerly done, or effectively demonstrate to salesmen employed by him how the various duties of a salesman, including the handling of the tobacco products and of the making of displays and the placing of advertising, should be carried on.

In September following the accident respondent entered the Law School of the University of South Carolina. He continued his studies there for two and one-half years and then went to Duke University Law School, where he received the degrees of Bachelor of Laws and Master of Laws. Four years were consumed in this college work, respondent returning to Columbia in 1937.

Upon his return to Columbia respondent immediately became active in the work of the various welfare agencies of the City, assisting them in their campaigns to raise funds and otherwise. His activities covered a broad field, but he received no compensation at first for his services. He testified that he went into this work so as to have something to do to occupy his time. Since the date of his accident and until March, 1940, he had not engaged in any remunerative occupation work.

Among the agencies thus...