Phillips v. Equitable Life Assur. Soc. of U.S.

• Decision Date: 05 May 1937
• Docket Number: 14477.
• Citation: 191 S.E. 226,183 S.C. 431
• Parties: PHILLIPS v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.
• Court: South Carolina Supreme Court

191 S.E. 226

183 S.C. 431

PHILLIPS v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.

No. 14477.

Supreme Court of South Carolina

May 5, 1937

Appeal from Common Pleas Circuit Court of Fairfield County; G. Dewey Oxner, Judge.

Action by Aline Phillips against the Equitable Life Assurance Society of the United States. Judgment for plaintiff, and defendant appeals.

Affirmed.

Thomas Lumpkin & Cain, of Columbia, and McDonald, Macaulay & McDonald, of Winnsboro, for appellant.

Douglas & Douglas, of Winnsboro, for respondent.

BONHAM Justice.

The respondent was employed in the Winnsboro Mills, a subsidiary corporation of United States Rubber Company. The Equitable Life Assurance Society issued its group policy covering the employees of United States Rubber Company, which, by agreement of defendant, was extended to cover the employees of Winnsboro Mills. January 1, 1931, the defendant issued and delivered to respondent its individual certificate whereby she was insured for the sum of $2,000. The policy is known as a group policy and contains the usual total and permanent disability clause.

The respondent brought this action to recover the sum of $2,000 alleging that she had become wholly disabled because of disease, and that under the terms of the policy she is entitled thereto; she further alleges that she has performed all of the conditions precedent required by the terms of the policy.

For answer to the complaint, the defendant admits that it issued the policy sued on. It denies knowledge or information sufficient to form a belief as to the allegations of paragraph 7 of the complaint, which relates to plaintiff's alleged disability. It admits that it has refused to make payment of plaintiff's claim. It denies each and every allegation of the complaint not admitted in the answer.

For further defense, it alleged: That the policy sued on ceased when the insured ceased to pay the premiums thereon, or when the insured's employment with the Winnsboro Mills terminated. That plaintiff left the employment of Winnsboro Mills December 31, 1931; and in consequence thereof her certificate of insurance was canceled October 31, 1932.

For further answer it was alleged that the plaintiff did not during her employment in the Winnsboro Mills and while the insurance was of force and effect, nor any one in her behalf, give notice to or furnish proof to the defendant that she had become totally and permanently disabled, and is now estopped from asserting any claim under said certificate.

For further defense, the defendant denies that plaintiff was, at any time during the period of her employment at the Winnsboro Mills and while the insurance was of force and effect, wholly disabled.

The case came on for trial before Judge Oxner and a jury at the spring, 1936, term of the court for Fairfield county and resulted in a verdict for plaintiff in the sum of $2,000 and interest.

In the course of the trial, motions for nonsuit, directed verdict, and new trial were made in due time, and each motion was denied.

This appeal stands upon fourteen exceptions. Appellant's counsel, in their brief, state five questions on which they elect to argue the appeal. We think that the answer to two questions will be determinative of the case, viz.:

(1) Was plaintiff disabled while the policy was in force and while she was in the employ of Winnsboro Mills?

(2) Did plaintiff furnish proofs of disability in due time? If she did not, did defendant waive the failure to do so?

The plaintiff discontinued her work at the mill the 31st of December, 1931, on account of her condition of pregnancy. It may be stated that her counsel does not claim that her pregnancy was such disease as constitutes disability within the conditions of the policy of insurance. Her policy of insurance was canceled November 2, 1932. The cardinal question to be answered here is this: Is there any evidence which required that the court submit to the jury the question, Did plaintiff's disability occur between December 31, 1931, and November 2, 1932?

The record contains a great deal of testimony thereabout, and, if this court had the power to declare where the preponderance of the evidence lay, it would say on the negative side of the question. But the law of this state has delegated the power to answer that question to the jury, and this court has laid down the rule that, if there is any relevant and competent evidence bearing on the issue, it must be submitted to the jury. True, the court has also laid down the rule that, if only one reasonable inference may be deduced from the evidence, it is a question of law to be determined by the court without reference to the jury.

Was there such testimony?

Dr. Lindsay, an honorable and credible witness, was asked: "Since what date has she been unable to engage in her occupation?" He answered: "According to this, December, 1931." Apparently the witness was looking at and referring to a statement he had made to the defendant insurance company. Defendant's counsel objected to his answer; the court admonished him to disregard the written statement, except as it refreshed his memory; then the witness said: "I guess about five or six years."

In addition to this testimony given by Dr. Lindsay, the plaintiff gave testimony as to her condition and feelings during the period under investigation, which the jury was entitled to consider in determining whether her disability existed between December 31, 1931, and November 2, 1932.

The appellant contended, and the presiding judge overruled it that plaintiff must give notice of, and furnish proof of, her disability during the life of the policy. His honor said that he could find in the policy of insurance no provision fixing the time in which proof of disability should be furnished. Our investigation affirms this ruling. The judge held, and charged the jury, that in such case the plaintiff must have filed the proofs of disability within a reasonable time. The proof was, and it is undisputed, that it was filed by plaintiff's attorney the 16th day of May, 1934;...