Stack v. Prudential Ins. Co. of America

• Decision Date: 09 June 1934
• Docket Number: 13864.
• Citation: 174 S.E. 911,173 S.C. 81
• Parties: STACK v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: South Carolina Supreme Court

174 S.E. 911

173 S.C. 81

STACK v. PRUDENTIAL INS. CO. OF AMERICA.

No. 13864.

Supreme Court of South Carolina

June 9, 1934

Appeal from Common Pleas Circuit Court of Spartanburg County; T. S Sease, Judge.

Action by T. F. Stack against the Prudential Insurance Company of America. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Osborne & Butler, of Spartanburg, for appellant.

Nicholls Wyche & Russell and Jennings L. Thompson, all of Spartanburg for respondent.

BONHAM Justice.

This action was brought to recover of the defendant insurance company the benefits of a group policy which had been issued by the company, to its employees, which included plaintiff, and which provided certain benefits in the event of his total disability. The company denied liability on several grounds, to wit, that plaintiff was not then, nor had been totally disabled to do his accustomed work in his accustomed way; that if plaintiff had ever suffered total disability, it had not occurred during the life of the policy; that plaintiff had not complied with the terms and conditions of the policy by giving the required notice and proof of disability; that total disability, if any existed occurred after plaintiff had left the employ of the company; and because the action was prematurely brought.

The case was tried by Judge Sease and a jury and a verdict was given for the plaintiff. During the trial defendant moved for direction of a verdict in its favor on the grounds stated in the record, which motion was refused. After verdict rendered, defendant moved for new trial on grounds substantially the same as those given in the motion for directed verdict, and additional grounds which included error in the admission of certain testimony. This motion was refused, and this appeal followed the entry of judgment on the verdict.

The issues for determination by the court are stated by appellant's argument to be:

1. Error in admitting the testimony of Dr. Gable and refusing to strike it from the record.

2. Error in refusing to direct a verdict for defendant on the ground that the alleged disability, if it existed, did not occur during the time when the plaintiff was employed by the defendant and when his insurance was in force.

Error in refusing to grant defendant's motion for directed verdict on the ground that plaintiff had failed to submit proofs of his alleged disability as required by the terms of the policy as a condition precedent.

5. Error in refusing to grant defendant's motion for directed verdict on the ground that even if the plaintiff was suffering from some disability, there was no showing that it was permanent.

The essential element of this case was this: Was, and is, plaintiff-now respondent-suffering from epilepsy?

There is proof of other disorders from which he suffered but no proof that these produced total disability. His right to recover in this action depended upon his presenting competent evidence that he was suffering from epilepsy of such nature as to produce total disability-that type or form of epilepsy known as grand mal. The plaintiff had served in the Army overseas during the war. In December, 1930, and again in November, 1931, he was admitted to the government hospital at Lake City, Fla. Dr. John D. Gable is on the medical staff of that hospital. His testimony was taken by deposition as a witness on behalf of the plaintiff. He was asked:

"As a consequence of your observation what diagnosis did you make as to his condition with particular reference as to whether or not he had epilepsy."

He answered:

"His final diagnosis was epilepsy grand mal."

On cross-examination he said that on the first visit of plaintiff to the hospital the witness diagnosed plaintiff's case as one of hysteria. He testified that plaintiff's symptoms on that visit did not suggest epilepsy-he had no seizure there. Witness was asked: "How many seizures, as you call them, did he have that you saw personally in 1931, while he was here?" He answered: ""Personally I did not observe any."

Defendant's counsel moved "to strike out all testimony relating to the doctor's conclusions and diagnosis with respect to the seizure and his conclusion and diagnosis thereof upon the ground, 1st that he testifies that he did not see the seizure, therefore has no personal knowledge, and the same must be based on hearsay, and move to strike out the testimony relating to the diagnosis of epilepsy on the ground that the witness has testified that he can only make a diagnosis positively from observation of a patient suffering in a seizure." The witness was further asked:

" You yourself have never seen him in a seizure, have you Doctor?"

He answered: "No, sir." "Except by hearsay you have no knowledge of the extent or frequency of any seizure which he may have claimed to have had, do you?"

Answer: " Our system of examining in this hospital authorizes the use of nurses notes and reports of other physicians to be considered as authentic. It was in that way I made my diagnosis." (Italics added.)

When the case was called for trial, the objections which had been made and noted at the taking of the deposition were presented to the court, as they pertained to certain testimony of Dr. Gable, among them the following:

"Q. Except by hearsay you have no knowledge of the extent or frequency of any seizure he may have claimed to have had, do you? A. Our system of examining in this hospital authorizes the use of nurses notes and the report of other physicians to be considered as authentic. It was in that way I made my diagnosis."

The motion to strike out was overruled, his honor saying: "I think to get the best evidence is all you can do."

The witness had testified that he had never seen plaintiff in an attack and that epilepsy could only be diagnosed by observing one in a seizure. When therefore he diagnosed this case as epilepsy grand mal, by his own statement he did so upon the information he had received from...