Smoak v. Southeastern Life Ins. Co.

March 27, 1935.

The opinion of the Court was delivered by The only real question presented by this appeal is: Was there any evidence to take the case to the jury on the issue of the insured's total and permanent disability? All the points made center about this one question.

The policy provides, among other things, that "upon receipt of proof satisfactory to the company of * * * the loss of both hands at or above the wrist * * * or that he (the insured) has become wholly disabled by bodily injuries * * * and will be permanently, continuously and wholly prevented thereby for life from pursuing any gainful occupations," he would be entitled to certain payments and benefits set out in the contract of insurance. The complaint alleged that while the policy was in force, due to an accident received by the plaintiff on August 12, 1926, he sustained the loss of both hands at or above the wrist; and further alleged that due to such injury, the insured has become permanently, continuously, and totally disabled.

There have been many decisions revolving around the matter of these disability contracts made by insurance companies; but in every case "the facts make the law," to use an expression of the distinguished lawyer, Mr. Justice Gage, whose intellect was great but whose character as a man was even greater.

In Berry v. United Life Acc. Insurance Co., 120 S.C. 328,113 S.E., 141, the Court defined "total disability" as not meaning a state of absolute helplessness. In McCutchenv. Pacific Mut. Life Insurance Co., 153 S.C. 401, 151 S.E., 67, the Court held, quoting syllabus: "Policy insuring against permanent total disability from injury or disease, inability to do substantially all material acts necessary to conduct or prosecution of business or occupation in substantially the usual and customary manner constitutes ``permanent total disability,' and absolute helplessness is not necessary."

In Brown v. Missouri State Life Insurance Co., 136 S.C. 90,134 S.E., 224, 225, it is said: "If the prosecution of the business required the insured to do several acts and perform several kinds of labor, and he is able to do and perform one only, he is as effectually disabled from performing his business as if he were unable to do anything required to be done, and while remaining in that condition he suffers loss of time in the business of his occupation. Nor does the provision contemplate absolute physical disability to transact any kind of business pertaining to one's occupation, but it is sufficient if his injuries are such that common care and prudence require him to desist from transacting any such business in order to effect a cure."

See, also, Taylor v. Insurance Co., 106 S.C. 356,91 S.E., 326, L.R.A., 1917-C, 910; Gresham v. InsuranceCo., 159 S.C. 326, 156 S.E., 878; Davis v. Insurance Co.,164 S.C. 444, 162 S.E., 429; Caldwell v. Insurance Co.,170 S.C. 294, 170 S.E., 349; Jones v. Insurance Co., 173 S.C. 213,175 S.E., 425.

The only question here is, as we have stated: Was there any evidence which, by fair interpretation, would authorize the jury to render a verdict for the plaintiff? Before entering into a discussion of the testimony, however, we will dispose of the following question asked plaintiff and his answer:

"Q. And you have never contended you were totally incapacitated? A. No, sir. I am not wholly incapacitated."

In the first place, the plaintiff evidently had the idea of absolute helplessness when he used these words. But this Court has time and again said that this is not the test. The real test has been all along laid down as set out in the quotations given above. In the second place, the law does not make him the absolute judge of the issues in the case, but wisely leaves this to the jury; and in the third place, this statement goes to the jury along with the other testimony and the effect of it is to affect his credibility, and the jury may give it such weight as they may see fit on the question as to whether or not this statement destroys the other testimony.

It appears from the evidence that plaintiff was injured when a car in which he was riding collided with a truck loaded with hot asphalt which was pitched upon the occupants of the car, and that plaintiff's hands were cooked, as was the back of his neck, and his arm was broken; that his work as a minister and preacher required him to do much traveling in a car, in several cases his churches being as much as twenty-four miles apart; and that he had to do much driving in going from place to place to preach, in visiting his members, and in going to the various church meetings. It was in testimony that his power to grip any object with his hands was ruined and that when he attempts to do so a sharp pain shoots through his hands. It is a matter of reason and common knowledge that such a defect in the power to grip and catch and hold an object would seriously interfere with the power to drive a car; that it would not only hinder his going from place to place, but in case of an emergency might endanger his own life or the lives of others; that driving is a substantial part of the preacher's business, as it is necessary to get from his home to the church in order to deliver the message; and all these matters were for the jury under the evidence in the case, under a fair interpretation of the testimony.

We feel that we might safely rest the case here under the law as heretofore laid down by the Courts. However, it was further in testimony that his power to write was substantially impaired, and we know as a matter of common knowledge that a minister has on occassion to write out sermons, reports, and resolutions for the various church bodies and assemblies, and on occasion it is necessary to write letters of condolence to members of the church or their families and others in an official capacity. His work and standing as a minister are largely affected by his ability to write. It was also in testimony that his inability to grip also affected his power to administer the sacraments and to perform the rites of baptism; that he was no longer able to handle books and papers with any degree of satisfaction; that his power to use his hands in eating has been impaired; that his nervous system has been deranged; and that his finger nails were lost and his condition has grown worse in the last few years — absolutely worse.

The physician testified that the burns were severe, third-degree burns, destroying the deeper tissues and causing the death of the tissues of the hands; that he had a complete fracture of the arm and that his condition is worse than it was two years ago, and that very little change for the better is likely to result; that the loss of the use of the hands would be total and permanent; that this results from the loss of that tissue, the destruction of the nerves immediately below the skin; that he can harly close his hands to do manual labor, or write, or feed himself, or hold a book In short, that he has been substantially deprived of the use of both hands, and that this is going to be permanent.

The testimony of plaintiff, taken in connection with that of the physicians and of the appearance of the pictures introduced in evidence, clearly makes a jury issue here. Such being the case, all the exceptions ought to be overruled.

In the case of Marshall v. Kansas City Life Insurance Co.,171 S.C. 321, 172 S.E., 504, 506, the Court said: "It is true the insured lost only one hand but, in our opinion, the fact that he did not lose both hands or one hand and one foot did not preclude him from recovering under the policy for total and permanent disability, if the facts in the case, to be determined from the testimony, which was a jury question, show that he had by loss of one hand or in some other way become totally and permanently disabled, within the meaning of the provisions of the policy, under the rule declared in the case of McCutchen v. Pacific Mutual Life InsuranceCompany, supra, and Davis v. Metropolitan LifeInsurance Company, supra."

In L.R.A., 1915-D, page 264, note, the author says, considering provisions against loss of hands or feet, generally: "It has been a common contention of insurers that a recovery could not be had under accident policies insuring generally against the ``loss' of hands or feet, where there has been no amputation or severance from the body of the injured member. The Courts, however, have as a rule refused to give such meaning to these provisions, and have held that under them a recovery may be had if the insured, by reason of his injury, has been deprived of the use of the member."

The instant case is clearly differentiated in its governing facts from Hickman v. Insurance Co., 166 S.C. 316,164 S.E., 878; DuRant v. Insurance Co., 166 S.C. 367,164 S.E., 881; and Morgan v. Insurance Co., 172 S.C. 404,174 S.E., 235. It comes under the Berry and Brown cases,supra, and other cases along the same line.

This opinion being concurred in by a majority of the Justices, it becomes the judgment of the Court, which is that the judgment of the Circuit Court is affirmed.

MR. CHIEF JUSTICE STABLER and MR. JUSTICE CARTER concur.

MR. JUSTICE BONHAM and MR. ACTING ASSOCIATE JUSTICE E.C. DENNIS, Circuit Judge, dissent.