Shealy v. United Ins. Co. of America

• Decision Date: 10 August 1961
• Docket Number: No. 17821,17821
• Citation: 121 S.E.2d 345,239 S.C. 71
• Court: South Carolina Supreme Court
• Parties: James L. SHEALY, Respondent, v. UNITED INSURANCE COMPANY OF AMERICA, Appellant.

Page 345

121 S.E.2d 345

239 S.C. 71

James L. SHEALY, Respondent, v. UNITED INSURANCE COMPANY OF AMERICA, Appellant.

No. 17821

Supreme Court of South Carolina.

Aug. 10, 1961.

Mays, Mays & Doyle, Greenwood, for appellant.

Harley & Parr, Newberry, for respondent.

J. B. NESS, Acting Associate Justice.

This is an action to recover indemnity for the period of time commencing July 9, 1959, to January 9, 1960, for a 'confining illness' upon a policy of insurance issued by the appellant in favor of the respondent.

The case was tried before a jury and resulted in a verdict in favor of the respondent. The trial court overruled motions for a non-suit and for the direction of a verdict made by appellant, and likewise denied its motion for judgment notwithstanding the verdict.

Under the heading of 'Sickness Benefits', the policy stated:

'Part Eleven ........

'If 'such sickness' causes continuous total disability and total loss of time, and requires continuous confinement within doors and regular and personal attendance therein by a licensed physician, surgeon, osteopath or chiropractor, other than the Insured, the Company will pay at the rate of the Monthly Benefit stated in the Policy Schedule for one day or more from the first medical treatment so long as the Insured lives and is so disabled and confined.

'Part Twelve ........

'If 'such sickness' does not require continuous confinement within doors but does cause continuous total disability and total loss of time and requires regular and personal attendance by a licensed physician, surgeon, osteopath or chiropractor, other than the Insured, the Company will pay at the rate of the Monthly Benefit stated in the Policy Schedule for one day or more from the first medical treatment for the period the Insured is so disabled but not exceeding three months for any one sickness.'

Respondent is afficted with chronic thrombophlebitis, a disease relating to the blood circulatory system. He became ill in June, 1959, and was treated by Dr. W. W. King, who referred him to Dr. McCutchen in Columbia, South Carolina.

The controversy is over the trial court's submitting to the jury under the evidence in the case, (1) the issue as to whether or not respondent was totally disabled, and (2) whether the respondent's disability was such as to confine the insured continuously within doors and to require regular and personal attendance therein by a licensed physician.

During the period involved in this action, respondent was being treated by a physician; was required, due to his physical condition and upon the advice of his physician, to stop his usual work as a watchman at a cotton mill. Dr. W. W. King testified that he advised respondent to quit his employment, and 'that he spend the majority of his time either in the bed with feet elevated or in the chair with feet elevated and two or three times a day he should be up and should get some moderate amount of exercise during those periods.' Dr. King further testified that in his professional opinion the respondent was 'totally disabled.'

We consider that the evidence offered by respondent tends to show facts and circumstances, which in our opinion sustain the ruling of the trial court, and which warranted the submission of the issue of total disability, within the meaning of the terms and provisions of the policy, to the jury. Total disability, within the meaning of an insurance provision covering such condition, does not mean absolute helplessness, and insured may recover under such indemnity where he is unable to do substantially all material acts necessary to perform his occupation in the customary manner. Berry v. United Life & Accident Insurance Company, 120 S.C. 328, 113 S.E. 141; Brown v. Missouri State Life Insurance Company, 136 S.C. 90, 134 S.E. 224; Taylor v. Southern States Life Insurance Company, 106 S.C. 356, 91 S.E. 326, L.R.A.1917C, 910; McCutchen v. Pacific Mut. Life Insurance Company, 153 S.C. 401, 151 S.E. 67; Harman v. New York Life Insurance Company, 184 S.C. 461, 192 S.E. 878; Dunlap v. Maryland Casualty Company, 203 S.C. 1, 25 S.E.2d 881, 149 A.L.R. 1; 45 C.J.S. Insurance § 980, page 1174.

We shall next consider the exceptions of appelalnt as to whether Part Eleven of the Contract of Insurance, which requires continuous confinement within doors and regular and personal attendance therein by a physician, is to be literally and strictly construed in view of the provision of Part Twelve of the Insurance Contract which prescribes a shorter period of payment for a non-confining total disability, and, if so, was the evidence sufficient to bring the respondent within the terms of such provisions?

The appellant contends that respondent was not confined continuously within doors and regularly visited therein by his physician as required by the terms of the policy to entitle him to the indemnity he claims.

The evidence is to the effect that the respondent is a man sixty-one years of age, living alone, and who, as a general rule, during the period of time involved in this cause of action, went to his doctor's office weekly and drove his car there as he couldn't walk, and had no one else to drive. He testified that he could only drive a short distance, and that his car had automatic transmission. He also stated that on occasions the doctor came to his house; that on occasions he went to the doctor's office and went to see his neighbors and to the store nearby to get supplies or medicines; that some weeks he didn't get out of the house except to go to the doctor's office; that he went to Columbia, South Carolina, on two occasions solely to see Dr. McCutchen and had someone else drive him there; that when he went out of the house it was necessary for him to go; that he is unable to do his household chores and has a negro boy to attend to this for him. There is some testimony in regard to respondent's visiting a lady on occasions for a period of approximately six months prior to their subsequent marriage on August 4, 1960, however, we have given this testimony no weight in view of the fact that it did not occur within the period of time involved in this cause of action. There is also testimony as to the respondent visiting another lady, however, the dates of these visits are not stated in the record and, hence, could not be considered by the Court.

From an examination of the cases dealing with the construction and application of the provision in health insurance policies requiring the insured's continuous confinement within doors in order to receive sick benefits, it appears that the courts have viewed the problem from two angles. In several instances the phrase 'continuously confined within doors' has been construed literally as a condition precedent to recovery, the only question being just what constitutes such confinement. In other instances the courts have said that the purpose of this clause is to make certain of the disability and that it should be construed as merely expressing the required degree of disability, not necessarily requiring actual confinement within...