McCutchen v. Life Ins. Co.

Full title: McCUTCHEN v. PACIFIC MUT. LIFE INS. CO

Court: Supreme Court of South Carolina

Date published: Dec 13, 1929

153 S.C. 401 (S.C. 1929)

151 S.E. 67

Opinion

12786

December 13, 1929.

Before R.W. McLENDON, Special Judge, Summer Term, 1928. Affirmed.

Action by Thomas E. McCuthen against the Pacific Mutual Life Insurance Company. From a judgment for plaintiff, defendant appeals.

The charge was as follows:

"Gentlemen, this is an unusual duty for me, but it becomes my duty to charge you as to the law governing the issues involved in this case, and it is right smart of a task. What I shall say to you will not be offhand, but will be almost entirely in writing. I have done that for the purpose of saying as exactly as I can what I should say to you. Now you don't have to listen at the lawyers in the case, but you are almost compelled to listen at what I have to say, whether you want to or not, because you must make a finding in the light of the law — that is, according to the testimony, governed by the law as I shall give it to you. Now I will try not to go too fast, and I shall try to emphasize certain things, so that you may fully understand it.

"The plaintiff, Thomas E. McCutchen, brings this action against the Pacific Mutual Life Insurance Company of California, alleging that the defendant is a corporation and is engaged in the business of insuring persons against loss of life, health, earning capacity, and disabilities caused by accidental bodily injury and disease, and that it is doing business in Lee County, S.C.

"He further alleges that, in consideration of the payment of the annual premium of $234.80, the defendant issued to him a certain insurance policy, dated on the 7th day of March, 1924, whereby it insured his life; and he states that said policy contained a total disability clause, whereby the defendant agreed that, in the event that the plaintiff should become totally disabled from accident or disease, to pay to the plaintiff a monthly sum of $75, during the continuance of such total disability, and to waive the payment during such total disability of all premiums thereafter becoming due on said policy or during the continuance of such disability; and he further states that he has paid the defendant all of the premiums becoming due on this policy pursuant to its requirements.

"He alleges that on or about the 10th to the 15th day of June, 1927, he became totally disabled by reason of disease, and that since that time he has been entirely unable to perform any work or engage in any occupation or profession for wages, compensation, or profit, and that such disability is total and has continued from said time and still continues, and that by reason thereof he is entitled to be paid by the defendant the sum of $75 per month from the date of such disability.

"He further alleges that about the middle of September, 1927, he made proof of the disability above referred to, and made demand upon the defendant for the payment of the indemnity sum of $75 per month, which demand was refused.

"He states that since the commencement of this action, and before March 17, 1928, in order to protect his rights under said policy, he paid the premium claimed by the defendant as due on March 17, 1928, in the sum of $234.80, which payment he alleges was made under protest and with the understanding that he waived no right claimed under the policy by reason of such disability; but that he made such payment to prevent the defendant from claiming that the policy had lapsed, and that he made the payment with notice that suit would be brought to recover it back.

"He states that the amount due up to the 1st day of June, 1928, is the sum of $900 monthly indemnity, and the sum of $234.80, which was paid as a premium, together with interest on all of these amounts, and he prays for judgment in the sum of $1,134.80 and interest.

"Now the defendant comes in and answers the complaint which I have stated the substance of; this answer being the defendant's pleadings with reference to the matters alleged in the complaint. In its answer the defendant denies every allegation in the complaint which it does not thereinafter specifically admit. Then the defendant specifically admits by its answer so much of paragraph 1 as alleges that the defendant is a corporation organized and existing under the laws of California, and is engaged in the business of insuring persons against loss of life, health, earning capacity and disabilities caused by accidental bodily injury and disease.

"It further admits so much of paragraph 2 as alleges that on or about the 17th day of March, 1924, the defendant, in consideration of the payment by the plaintiff of the sum of $234.80, issued its certain policy of insurance covering the life of the plaintiff, said policy being numbered 536621; and it further alleges that such disabilities as it contracted to insure against are fully set out in the policy of insurance on page 2 of the same, a part of said provision being as follows — I will read from the answer of the defendant (reading):

"` Permanent Total Disability Benefit. Should the Insured, before the anniversary of this Policy nearest the date on which he shall attain the age of sixty years and while this Policy is in full force and no premium thereon in default, become permanently totally disabled, as hereinafter defined, The Company, subject to the conditions hereinafter set forth, will waive the payment of all future premiums required under the conditions of the policy as they become due and pay the insured a monthly income of $75, such waiver to be effective and the first of such monthly income payments to become due and the period of liability to commence as of the date of receipt at the Home Office of the company of due written proof of such disability and a subsequent payment to be made on the first day of each month thereafter during the continuance of such disability. Such waiver of premiums and income payments shall not affect any other benefits or values provided under the policy.

"`Permanent total disability, as used herein, is defined to mean:

"`1. Disability caused by accidental bodily injury or disease which totally and permanently prevents the insured from performing any work or engaging in any occupation or profession for wages, compensation or profit; or

"`2. Disability caused by accidental bodily injury or disease which totally prevents the insured from performing any work or engaging in any occupation or profession for wages, compensation or profit and which shall have totally and continuously so prevented the insured for not less than ninety days immediately preceding the date of receipt of due written proof thereof; or

"`3. The irrecoverable loss of the entire sight of both eyes, or the amputation at or above the wrist or ankle of both hands or both feet or a hand and foot, if such loss or amputation is caused by accidental bodily injury or disease.'

"And it denies each — that is, the defendant — and it denies each and every other allegation contained in paragraph 3; that is, of the complaint.

"The defendant in paragraph 5 of its answer admits so much of paragraph 4 of the complaint as alleges that the plaintiff, during the month of September, 1927, made claim and demand upon it for the payment of $75 per month; but it denies any liability to said plaintiff, for the reason that it alleges that the said plaintiff is not now, nor has he been at any time during the life of the said policy of insurance, totally and permanently disabled, as stipulated in said policy; and it denies each and every other allegation contained in paragraph 5 of the complaint.

"Thus, gentlemen, it is seen that certain allegations of the complaint are admitted by the defendant and certain other material allegations are denied. By the denial of the material allegations of the complaint the plaintiff is put to the proof of such allegations; and it is incumbent upon him to prove such material matters as are denied by the greater weight of the evidence or the preponderance of the evidence. The expression, `greater weight or preponderance of the evidence,' means just what it says; that is, that, if the weight of the evidence of the defendant's side equals the weight of the evidence on the plaintiff's side, the scales would be balanced, and the plaintiff under such circumstances will have failed to establish the matters required to be established by the greater weight of the evidence. In other words, to determine the greater weight of the evidence, the jury must imagine a scale by which the evidence on each side is accurately weighed, and in their mind they put the evidence of the plaintiff on one side of the scale and the evidence of the defendant on the other, and, if the side of the scale containing the evidence of the plaintiff does not go down and outbalance the evidence on the part of the defendant, then the plaintiff has failed to produce the required degree of proof to establish his case, and the recovery in such case would be for the defendant.

"A policy of insurance is a contract, and, when parties enter into a contract and define their rights and duties by the terms of that contract, then it is the purpose of the law to hold both to the performance of the terms of the contract which they have voluntarily entered into. The parties have fixed their rights by the four corners of the contract, and the Court and the jury must look to the contract of the determination of the rights of the parties. It is admitted in this case that the policy of insurance which has been introduced in evidence was issued to the plaintiff by the defendant, in consideration of the payment of $234.80 premium, and that to keep said contract or policy of insurance in force it was necessary for the plaintiff to annually pay this premium to the defendant, unless by the terms of the policy the payment of that premium was for any purpose waived or dispensed with, and, if it was, then the contract would continue in force, notwithstanding the failure to pay the premium; it being undisputed, I can tell you in this case, that all premiums which could be required paid have been paid, and at this time the policy of insurance which has been introduced in evidence is a valid and existing contract between the plaintiff and the defendant.

"The plaintiff contends in his complaint that, by reason of certain disabilities suffered by him, he has become permanently and totally disabled, and that, because of certain policy provisions and his condition, the defendant is required to pay to him the sum of $75 per month from the commencement of his disability to and including the 1st day of June, 1928, and that, because of the fact that he has paid a premium amounting to $234.80, which under the provision of the policy and his condition the payment of which the defendant had waived, he is entitled to recover back that sum in addition to the monthly payments claimed. Those claims by the plaintiff are disputed by the defendant, and it contends in its answer that it is not liable to the plaintiff for these sums of money, because it says that the plaintiff is not now, nor has he at any time during the life of the policy of insurance been, totally and permanently disabled, and that makes the issues which you are to determine. The existence of the contract is not disputed, the provisions of the contract are not disputed, but the condition of the plaintiff — that is, whether or not the plaintiff is permanently and totally disabled — is disputed. That is the issue which you are to determine in this case.

"If you find that the plaintiff is, according to the definition of the terms and the construction of the contract which I shall hereafter give you, permanently and totally disabled, within the meaning of those terms as used in the contract, then it will be your duty to find for the plaintiff, the amount of your verdict to be determined by you from the evidence in the case and the construction of the contract which I shall make. If, however, you find that the plaintiff is not permanently and totally disabled, according to the definition of such terms as I shall hereafter give you, then it will be your duty to find for the defendant, because, in such case, the plaintiff would not be entitled to recover at all.

"Therefore, it is seen that your duty will be to inquire and determine from the evidence in the case and the weight of the evidence in the case whether or not the plaintiff is permanently and totally disabled within the meaning of those terms as used in the policy. I cannot help you determine that question. It is my duty to declare the law to you, but the facts are for you, and I have no purpose to intimate to you any conclusions that I may have come to about the facts, if I have reached any such conclusions; and, if anything I say may be constructed as an intimation of my judgment or belief about the facts, you are to disregard that in your deliberations and not allow it to influence your conclusions, because the facts are entirely for your determination after you have heard the law as I shall give it to you.

"Since the plaintiff has submitted certain requests to charge, which I intend to charge as embodying correct principles of law, particularly upon the construction of some of the language in the policy of insurance, I shall now read you these requests, and I charge you that they do embody correct principles of law and are to be accepted by you as the law of this case as far as I shall charge them. The plaintiff has asked me to charge you as follows:

"`1. It becomes my duty — that is, the Court — to construe the provisions of the policy which has been introduced in evidence and tell you what they mean and it is your duty to find from the evidence whether or not the plaintiff, the insured in this case, comes within any of those provisions, and to say, under the construction of the policy, as I shall give you, and the facts as found by you from all of the evidence in the case, whether or not the plaintiff is entitled to recover, and if so, what amount he shall recover.

"`2. The following are the provisions of the policy which I shall undertake to construe, and which construction it is your duty to be controlled by, whether you agree with it or not:

"`Should the insured, before the anniversary of this policy nearest the date on which he shall attain the age of 60 years and while this policy is in full force and no premium thereon in default, become permanently totally disabled, as hereinafter defined, the company, subject to the conditions hereinafter set forth, will waive the payment of all future premiums required under the conditions of the policy as they become due and pay the insured a monthly income of $75, such waiver to be effective and the first of such monthly income payments to become due and the period of liability to commence as of the date of receipt at the home office of the company of due written proof of such disability and a subsequent payment to be made on the 1st day of such month thereafter during the continuance of such disability. Such waiver of premiums and income payments shall not affect any other benefits or values provided under the policy.

"`Permanent total disability, as used herein, is defined to mean:

"`(1) Disability caused by accidental bodily injury or disease which totally and permanently prevents the insured from performing any work or engaging in any occupation or profession for wages, compensation or profit; or

"`(2) Disability caused by accidental bodily injury or disease which totally prevents the insured from performing any work or engaging in any occupation or profession for wages, compensation or profit and which shall have totally and continuously so prevented the insured for not less than ninety days immediately preceding the date of receipt of due written proof thereof; or

"`(3) The irrecoverable loss of the entire sight of both eyes, or the amputation at or above the wrist or ankle of both hands or both feet or a hand and foot, if such loss or amputation is caused by accidental bodily injury or disease.

"`Should the insured at any time, when in the judgment of the company the same shall be reasonably necessary, fail to furnish due written proof of the continuance of permanent total disability, as above defined, the company will discontinue the income payments above provided for and retire the payment of any premiums thereafter becoming due under the conditions of the policy. No reimbursement shall be required, however, for any premiums waived or income payments made.

"`3. The only difficulty about that language hinges around the meaning of the words "permanent total disability," and the policy defines what that language means. But the suggested difficulty with the policy's definition is that I shall have to construe and define some of the language used in the definition. The policy gives three definitions of the words "permanent total disability." In the definition numbered 1, the disability must be total and permanent; in the definition numbered 2 the disability must be total, but the word "permanent" is not used. Instead, to be permanent under the definition, the disability must be total and continuous for not less than ninety days immediately preceding the date of the receipt of due written proof thereof, yet while lasting only ninety days it is made by the definition of the policy, permanent; in the definition numbered 3 the disability must be due to the irrecoverable loss of the entire sight of both eyes, or to the amputation of both feet or both hands or one foot and one hand at or above the wrist or ankle. Therefore, for the insured to recover under the first, his disability must be total and permanent; for him to recover under the second, his disability must have been total and continuous for not less than ninety days immediately preceding the date of the receipt by the defendant of due written proof thereof. There is no claim that the insured has suffered any of the disabilities named in the third, and we are not concerned with that, except that it may throw light on the meaning of the others.

"`4. If the insured brings himself under both or either one of the definitions numbered 1 and 2, by the preponderance of the evidence, he would be entitled to recover, the amount of the recovery being found by you according to the same scale of evidence.

"`5. It is therefore necessary for me to tell you the meanings of the words, "disability," "total disability," and "permanent disability." Disability is lack of perfect and complete ability, it is under ability, reduced ability, the functioning of one or more of the mental or physical organs below its normal and usual efficiency, caused by accidental bodily injury or disease.

"`6. The words "total disability," as used in the policy of insurance introduced in evidence, does not mean as its literal construction would require, a state of absolute helplessness, which can result only from loss of reason, since, as long as one is in full possession of his mental faculties, he is capable of transacting some part of his business, whatever it may be, although he is incapable of physical action. On the contrary, the Courts, giving consideration to the object of the contract, hold that the "total disability" contemplated by the agreement is inability to do substantially all of the material acts necessary to the prosecution of the insured's business or occupation, in substantially his customary and usual manner.

"`7. If the prosecution of his business required the insured to do several acts and perform several kinds of labor and he is able to do and perform only one, he is as effectually disabled from performing his business as if he were unable to do anything required to be done, if, while remaining in that condition, he suffers loss of time in the business of his occupation. Nor do the words "total disability," as used in the policy, 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 or in order to prevent his business from becoming unprofitable.

"`8. The insured is deemed "totally disabled" when he is no longer able to do his accustomed task, and such work as he has only been trained to do, and upon which he must depend for a living.

"`9. The words "permanent disability" do not mean that the total disability, as already defined, must last forever before the insured would be entitled to the benefits provided in the policy. Ordinarily, "permanent" is the opposite of "temporary," but the word "permanent" does not always mean forever or lasting forever. The meaning of that word is to be construed according to its nature and in its relation to the subject-matter of the contract. Standing alone, it would mean that the total disability must be a lasting one, but, taken in connection with other language used in the policy, as above stated, a fair construction of these words is not that the total disability shall last or exist forever, but that such disability which existed continuously for not less than ninety days immediately preceding the date of receipt of due written proof thereof, is within the meaning of the policy a permanent total disability.'

"Now those are the requests of the plaintiff to charge, and I charge you all those as being the correct principles of law as governing this case.

"Now the defendant has asked me to charge quite a number of propositions as it contends govern the issues involved from its standpoint.

"The first proposition — I have to read so much and go over the same ground. Its first proposition is this:

"`1. The policy in this case provides:

"`"(1) Disability caused by accidental bodily injury or disease which totally and permanently prevents the insured from performing any work or engaging in any occupation or profession for wages, compensation or profit; or

"`"(2) Disability caused by accidental bodily injury or disease which totally prevents the insured from performing any work or engaging in any occupation or profession for wages, compensation or profit and which shall have totally continuously so prevented the insured for not less than ninety days immediately preceding the date of receipt of due written proof thereof."

"`The plaintiff here alleges that he is totally and permanently disabled under the terms of the policy in question, and alleges that such existed from the month of June, 1927. The law requires that the Court shall construe contracts, and for that purpose I shall give to you my views on what this contract means.'

"Well, now, I have already charged you what I understand this contract means. The next proposition is No. 2. Now mind you, understand this, I will read you these charges, and tell you whether I charge them as good law or not.

"`2. First of all, I charge you that it is incumbent upon the plaintiff here to prove that, since the issuance of this policy, and from the month of June, 1927, 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, or engaging in any occupation or profession for wages, compensation, or profit. The plaintiff must prove these allegations by the greater weight of the evidence before he can recover.' That proposition I am not going to charge you, because it is inconsistent with what I conceive to be the law. I must charge you that the plaintiff has to prove his case by the greater weight of the evidence; I have already charged you that.

"`3. I charge you that this is not a health policy, as some policies are called. A person may be in bad health, or have some impairment of his senses, under the terms of the policy such as exists here, and yet not be totally and permanently disabled as prescribed in the policy which I have read to you.' I charge you, gentlemen, that this policy does contain a provision which is nothing more nor less than a health provision. It is a kind of multiple or compound affair. It is both a life policy and a health policy.

"`4. I charge you that the words used in this policy do not mean merely that the disability claimed may incapacitate the plaintiff from pursuing his usual avocation, that of a cotton broker, farmer, or merchant, or other work he might have heretofore been engaged in; but it must incapacitate him from engaging in any avocation for remuneration or profit, or from engaging in any gainful occupation.' I cannot charge you that, because that is inconsistent with what I have already charged you and with what I conceive to be the correct law of this case.

"`5. I charge you further that this written contract does not mean that he is simply disabled so that he cannot follow his own trade or business; if you find from the evidence that he retains physical ability sufficient for the pursuance of other avocations or business, in which he might engage for profit or remuneration, then he is not totally and permanently disabled under the terms of the policy which we have before us. As an illustration:

"`If a man was an engineer on a train and was injured and claimed to be wholly disabled, the fact that he might be unable to run an engine would not be sufficient where it appears that he could engage in other business for profit, or follow another gainful occupation. The fact that a man might be disabled for his own business does not mean under the terms of a policy like this that he can sit down and not try to do other kinds of work.'

"I am not going to charge you that, because I think that is inconsistent with the view of the law as laid down by the Supreme Court applying to this case.

"`6. This policy uses two distinct phrases in reference to disability, one requires proof that plaintiff cannot perform any work, and the other requires proof that he cannot engage in any occupation or profession for wages, compensation, or profit. The plaintiff must therefore prove by the greater weight of the evidence both a present and future inability to perform any work or follow any occupation or profession as I have defined to you. I cannot charge you that, either.

"`7. I charge you further that it would not be necessary that the business or occupation in which he might or could engage should actually be profitable or remunerative. A man would have to take the risk that all men take in business. He might expect to make a profit out of a good business which he could engage in, and yet no gain would actually be received because of losses which come to all of us in businesses which we undertake to carry on. I charge you that the test would not be whether he could have actually made a profit, if it was such a business that he was able to engage in, in the expectation of profit or remuneration.' I charge you that as a correct proposition, provided he was doing or continued to do those things which he had been accustomed to do heretofore.

"`8. I charge you that any disability claimed by the plaintiff in this case must, under the terms of this written contract, be not only a total disability at the present time, but he must prove by the greater weight of the evidence that he is totally and permanently disabled for all time. The policy provides that the insured must be "totally and permanently" prevented, so, in order that the plaintiff may prove his case as alleged in the complaint, he must show that he not only now and since June, 1927, totally and permanently disabled but will continue to be in such condition.' I cannot charge you that, because I think that is inconsistent with what I have already charged you as being the correct law governing this case.

"`10. I charge you in this case, as I stated above, that you must conclude first of all whether the plaintiff has proved that he was disabled, as claimed in the complaint, during the month of June, 1927, and the succeeding months, and will continue to be totally and permanently disabled for all time in the future. As I construe this policy, and I so charge you, it does not mean a temporary ailment or disease. It means just what the words imply, a permanent inability to follow any gainful occupation or performing any work for compensation during this time and in future years.' I cannot charge you that either.

"`11. I charge you that, if you find from the evidence that the plaintiff has been engaged in any trade or business for profit or compensation since June, 1927, that he is not entitled to recover under this policy; the reason being that he has been engaged in a business for profit or compensation, and the contract of insurance does not prescribe that it will pay the plaintiff except when he is and has been totally and permanently disabled from performing any work or engaging in any occupation or profession for wages, compensation, or profit.' I cannot charge you that either, because it is inconsistent with what I have already charged you as being the correct principles of law in this case.

"`12. I charge you further that, if you find from the evidence that the only disability suffered by this plaintiff since the issuance of this policy is an injury to or impairment of his hearing, such disability is not sufficient to warrant a recovery by the plaintiff under this policy; the same not constituting total and permanent disability from performing any work for gain, profit or compensation.' I refuse to charge that, because I think it is trespassing upon the duty of the jury, and would be, in all probability, charging on a matter of fact.

"`13. I charge you that the issues you are to determine are: (a) Is the plaintiff in this case totally and permanently prevented from performing any work or engaging in any occupation or profession for wages, compensation or profit? (b) Is such disability total and permanent and will it so continue? (c) After considering the one question above mentioned you will have to go further and determine whether the plaintiff has proven to you by the greater weight of the evidence that he is totally and permanently disabled so that he is wholly and continuously prevented from performing any work for compensation, gain, or profit and from following any gainful occupation. (d) The foregoing words, I charge you, do not mean that he will actually make a profit out of any work he might engage in, but that he cannot carry on any business that you as reasonable men might feel he could engage in.' I don't think I can charge you that, gentlemen. Insofar as any of that may be applicable, and I should charge, is covered by what I told you was the correct law already.

"Now, from the definitions that I first gave you, which were embodied in the requests to charge by the plaintiff, from these definitions of disability, total disability, and permanent disability, you are to apply the facts from the evidence introduced in the case, and then to determine from all of the facts and from all of the law, as I have charged you, and make up your verdict. Since the plaintiff does not claim that his alleged disability is due to accidental bodily injury, it will not be necessary for me to define to you what accident or accidental bodily injury is. I further charge you that, under the construction of the policy as I make it, if you find that the plaintiff is entitled to recover, he would not be entitled to recover all the amount claimed by him in his complaint. If you find that he comes within the character of the disabilities mentioned in the policy, within the meaning of those terms as I have given them to you, the first monthly payment to which he would be entitled would be due immediately upon the receipt of written proof of his disability, and a subsequent monthly payment would be due on the 1st day of each month thereafter during the continuance of such disability. So that, if you determine that the monthly payments are due as claimed, if you find that he is entitled to recover them, you would determine the date when written proof of his disability was received by the defendant, and a payment would be due then and another payment of $75 would be due on the 1st day of each month thereafter during the continuance of his disability up to and including June 1, 1928, together with interest thereon at 7 per cent from the date that they became due. If you find that the plaintiff is entitled to recover, he would also be entitled to recover the payment of any premiums which he paid after and during the continuance of his disability, if he was disabled as provided in the policy, together with interest on that sum at the rate of 7 per cent per annum. So that you would determine the number of monthly payments which the defendant ought to have paid under the terms of the policy, with interest on each, and also the premium paid with interest on that sum. That is, of course, provided you find that the plaintiff is entitled to recover at all. If you find, as I have already said, that he is not entitled to recover at all because he does not come within the meaning of the policy, is not totally and permanently disabled as I have given you its meaning, then you would find for the defendant. If you find that the plaintiff is entitled to recover, then the form of your verdict would be, 'We find for the plaintiff the sum of so many dollars and so many cents,' written out in words and not in figures, and sign your name as foreman. If you find that the plaintiff is not entitled to recover, then the form of your verdict would be, `We find for the defendant,' and sign your name as foreman.

"Now, gentlemen, that is quite lengthy, and if there is anything else you wish me to cover, I will be glad to do it.

"Mr. Tatum: Nothing further, your Honor, I think that is all right.

"The Court: I will go over this again as held by the Supreme Court in the case of Berry v. United Life Accident Insurance Company, reported in 120 S.C. at page 328, 113 S.E., 141, 142. The Supreme Court, in citing that case, held this to be the correct principle of law governing a contract of this kind: `The rule prevailing in most jurisdictions is that the "total disability" contemplated by an accident insurance policy does not mean, as its literal construction would require, a state of absolute helplessness which can result only from loss of reason, since as long as one is in full possession of his mental faculties he is capable of transacting some part of his business, whatever it may be, although he is incapable of physical action. On the contrary, these Courts, giving consideration to the object of the contract, hold that the "total disability" contemplated by the agreement is inability to do substantially all of the material acts necessary to the prosecution of the insured's business or occupation, in substantially his customary and usual manner.' That is what the Supreme Court says total disability means, regardless of how it is expressed in this contract. That total disability, as provided in the contract, means, as they construe here, inability to do substantially all of the material acts necessary to the prosecution of the insured's business or occupation, in substantially his customary and usual manner.

"That is quite lengthy, gentlemen, but this case involves a good many propositions of law, and they are quite difficult. But that is the best I can do for you, and I hope you will see your duty in this matter clearly. Now, the only thing left for you to do is to retire to the jury room and take with you — what do you wish the jury to take with them?

"Mr. Tatum: The complaint and the answer. No need to give them the original complaint; just the supplemental complaint, and any of the exhibits they may want.

"The Court: After you have made up your finding, gentlemen, you will indorse on the back of this supplemental complaint, 'We find for the plaintiff — should you find for the plaintiff — so many dollars and so many cents,' and write your name as foreman. If you find for the defendant, you will write on the back of this supplemental complaint, `We find for the defendant,' and write your name as foreman. I give you along with that the answer of the defendant, which shows the contention of the defendant, the complaint showing the contention of the plaintiff. And that brings about the issues in the case which you are to decide. You will take these two records and retire to your room.

"Mr. Lumpkin: Your Honor, they should have the policy.

"Mr. Tatum: It is perfectly agreeable with us.

"The Court: It won't do any harm, will it? Let the foreman come out and see that he has the policy. The jury retires. The jury returns.)

"The Foreman: The majority of us are balled on the interest.

"The Court: It is a matter of interest bothering you?

"The Foreman: Yes, sir.

"The Court: Mr. Foreman, you don't know how to figure it?

"The Foreman: We disagree as to where to start from.

"The Court: I can't tell you what month to begin with; that is a matter for you. Let me go over that part of my written charge to you which covers that point. I will take this part which deals with a matter of interest. 'So, if you determine that the monthly payments' — I better not do that. After you find when the insurance company commenced to be liable, if you should find that they are liable, you would then figure interest on that amount from that date to the 1st of June, or it would be to the — or would it be to the time of figuring the verdict?

"Mr. Tatum: I would suggest that if the jury desire to figure interest, the interest would be due on each payment from the date that the payment became due up to this time. Interest would, therefore, have to be figured upon each amount or payment found to be due from the date it became due until this time.

"The Court: Gentlemen, you think you understand that now?

"The Foreman: Yes, sir.

"The Court: Is that the only thing bothering you?

"The Foreman: Yes, sir.

"The Court: Should you find that the insurance company is due the payments claimed, or part of the payments claimed, then you find the interest as Mr. Tatum stated, at the rate of 7 per cent per annum from the date each one of those payments fell due up to today, when you make the finding. I will state, by way of a hypothetical case, that should you find, say, on the 15th of last July there was a payment due, you would then figure the interest on that $75 from the 15th of July to the present. Then if you found another payment due, according to the terms of the contract, which provides that on the 1st of each month thereafter there would be $75 due, then on the 1st of August there would be another $75 due, with interest to the present; then on the 1st of September; then on the 1st of October; and so on down. The interest would become less and less, the nearer you come to the present day. The first payment would be the longest, the second next, and so on, and the last the shortest. Do you think you can figure the interest on that information?

"The Foreman: Yes, sir.

"Mr. Tatum: Your Honor stated a hypothetical case, and for fear they might get confused, I would like to ask your Honor to state to the jury that there is no contention on the part of the plaintiff that any monthly payment is due in July, but it is alleged — and I think your Honor can state that, it being admitted in the answer — that proofs were filed in the middle of September, and no monthly payment could become due prior to that time.

"The Court: I think you understand that, gentlemen. I didn't mean for you to understand me to intimate that a payment was due on the 15th of July or the 1st of August; I merely stated that by way of illustration. You will have to find when the payment became due and figure from that time. Don't pay any attention to what I said about July.

"The Jury: Couldn't we find a verdict of so many dollars and cents with interest, and let somebody else figure the interest? I have got sixteen miles to go.

"The Court: Can't do that; you will have to figure the interest.

"Mr. Tatum: If your Honor please, counsel and I can agree on the interest, and, if the jury desire, they might find a lump sum with interest, and counsel can agree on the interest.

"Mr. Ruffin: Yes, sir; we will agree only as to the interest.

"The Court: Let it go as it is."

The exceptions were as follows:

"1. Because his Honor, the presiding Judge, erred in refusing to order a nonsuit when by the express terms of the policy, before a recovery could be had, it must be established that the insured was totally and permanently disabled by accidental bodily injury or disease so that he would be unable to perform any work or engage in any occupation or profession for compensation, wages, or profit, and when it was admitted by the plaintiff that during the pendency of the disability claimed he had been general manager of a large mercantile establishment and was and is now engaged in extensive farming operations.

"2. Because his Honor, the presiding Judge, erred in refusing to direct a verdict in behalf of the defendant when only one reasonable inference could be drawn from the testimony; that inference being that the insured was able to be and had been engaged in some gainful occupation or profession since the time the alleged disability is said to have commenced.

"3. Because his Honor, the presiding Judge, erred in charging the jury as follows:

"`The words "total disability," as used in the policy of insurance introduced in evidence, does not mean as its literal construction would require, a state of absolute helplessness, which can result only from loss of reason, since, as long as one is in full possession of his mental faculties, he is capable of transacting some part of his business, whatever it may be, although he is incapable of physical action. On the contrary the Courts, giving consideration to the object of the contract, hold that the "total disability" contemplated by the agreement is inability to do substantially all of the material acts necessary to the prosecution of the insured's business or occupation, in substantially his customary and usual manner.'

"`If the prosecution of his business required the insured to do several acts and perform several kinds of labor, and he is able to do and perform only one, he is as effectually disabled from performing his business as if he were unable to do anything required to be done, if, while remaining in that condition, he suffers loss of time in the business of his occupation. Nor do the words "total disability" as used in the policy 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 or in order to prevent his business from becoming unprofitable.'

"`The insured is deemed "totally disabled" when he is no longer able to do his accustomed task, and such work as he has only been trained to do, and upon which he must depend for a living.'

"`The words "permanent disability" do not mean that the total disability, as already defined, must last forever before the insured would be entitled to the benefits provided in the policy. Ordinarily, "permanent" is the opposite of "temporary", but the word "permanent" does not always mean forever or lasting forever. The meaning of that word is to be construed according to its nature and in its relation to the subject matter of the contract. Standing alone, it would mean that the total disability must be a lasting one, but, taken in connection with other language used in the policy, as above stated, a fair construction of these words is not that the total disability shall last or exist forever, but that such disability which existed continuously for not less than ninety days immediately preceding the date of receipt of due written proof thereon is within the meaning of the policy a permanent total disability.'

"The error being that, under the terms of the contract of insurance, before a recovery could be had thereon, it must be established that the insured was so disabled by accidental bodily injury or disease that he was totally and permanently prevented from performing any work or engaging in any occupation or profession for wages, compensation, or profit, and the charge did not embody the correct principles of law applicable to the case at bar; it being indisputably shown that the plaintiff had been, and is now, able to perform some work for compensation, gain, and profit, and by the charge a meaning was read into the contract which was not intended at the time it was entered into.

"4. Because his Honor, the presiding Judge, erred in refusing to charge the jury, at the request of the defendant, as follows:

"2. (a) `First of all, I charge you that it is incumbent upon the plaintiff here to prove that, since the issuance of this policy, and from the month of June, 1927, 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, or engaging in any occupation, or profession for wages, compensation, or profit. The plaintiff must prove these allegations by the greater weight of the evidence before he can recover.'

"4. (b) `I charge you that the words used in this policy do not mean merely that the disability claimed may incapacitate the plaintiff from pursuing his usual avocation, that of a cotton broker or merchant, or other work he might have heretofore been engaged in; but it must incapacitate him from engaging in any avocation for remuneration or profit, or from engaging in any gainful occupation.'

"5. (c) `I charge you further that this written contract does not mean that he is simply disabled so that he cannot follow his own trade or business, if you find from the evidence that he retains physical ability sufficient for the pursuance of other avocations or business, in which he might engage for profit or remuneration, then he is not totally and permanently disabled under the terms of the policy which we have before us. As an illustration:

"`If a man was an engineer on the train and was injured and claimed to be wholly disabled, the fact that he might be unable to run an engine would not be sufficient, where it appears that he could engage in other businesses for profit or follow another gainful occupation. The fact that a man might be disabled for his own business does not mean under the terms of a policy like this that he can sit down and not try to do other kinds of work.'

"6. (d) `This policy uses two distinct phrases in reference to disability, one requires proof that plaintiff cannot perform any work, and the other requires proof that he cannot engage in any occupation or profession for wages, compensation or profit. The plaintiff must therefore prove by the greater weight of the evidence both a present and future inability to perform any work or follow any occupation or profession as I have defined to you.'

"7. (e) `I charge you further that it would not be necessary that the business or occupation in which he might or could engage should actually be profitable or remunerative. A man would have to take the risk that all men take in business. He might expect to make a profit out of a good business which he could engage in, and yet no gain would actually be received because of losses which come to all of us in business which we undertake to carry on. I charge you that the test would not be whether he could have made a profit, if it was such a business that he was able to engage in, in the expectation of profit or remuneration.'

"8. (f) `I charge you that any disability claimed by the plaintiff in this case must, under the terms of this written contract, be not only a total disability at the present time but he must prove by the greater weight of the evidence that he is totally and permanently disabled for all time. The policy provides that the insured must be "totally and permanently" prevented, so, in order that the plaintiff may prove his case as alleged in the complaint, he must show that he is not only now and since June, 1927, totally and permanently disabled, but will continue to be in such condition.'

"11. (g) `I charge you that, if you find from the evidence that the plaintiff has been engaged in any trade or business for profit or compensation since June, 1927, that he is not entitled to recover under this policy; the reason being that he has been engaged in a business for profit or compensation, and the contract of insurance does not prescribe that it will pay the plaintiff except when he is and has been totally and permanently disabled from performing any work or engaging in any occupation or profession for wages compensation, or profit.'

"12 (h) `I charge you further that, if you find from the evidence that the only disability suffered by this plaintiff since the issuance of this policy is an injury or impairment of his hearing, that such disability is not sufficient to warrant a recovery by the plaintiff under this policy; same not constituting permanent and total disability from performing any work for gain, profit, or compensation.'

"13. (i) `I charge you that the issues you are to determine are: (a) Was the plaintiff in this case totally and permanently prevented from performing any work or engaging in any occupation or profession for wages, compensation, or profit? (b) Is such disability total and permanent, and will it so continue? (c) After considering the one question above mentioned, you will have to go further and determine whether the plaintiff has proven to you by the greater weight of the evidence that he is totally and permanently disabled so that he is wholly and continuously prevented from performing any work for compensation, gain, or profit and from following any gainful occupation. (d) The foregoing words, I charge you, do not mean that he will actually make a profit out of any work that he might engage in, but that he cannot carry on any business that you as reasonable men might feel he could engage in.'

"The error being that the physical impairment complained of was at most only a partial disability, and the policy in question expressly provided that the insured must be totally and permanently disabled by accidental bodily injury or disease so as to be thereby prevented from performing any work or engaging in any occupation or profession for wages, compensation, or profit before a liability would be incurred thereon, and it was conclusively shown by the evidence that the insured is now and has been able to, and in fact is, engaged in a gainful occupation; and (b) because these requests embodied the correct principles of law by which the testimony in the case should be governed.

"5. Because his Honor erred in charging the jury as follows:

"`The rule prevailing in most jurisdictions is that the "total disability" contemplated by an accident insurance policy does not mean as its literal construction would require, a state of absolute helplessness which can result only from loss of reason, since as long as one is in full possession of his mental faculties, he is capable of transacting some part of his business, whatever it may be, although he is incapable of physical action. On the contrary, the Courts, giving consideration to the object of the contract, hold that the "total disability" contemplated by the agreement is inability to do substantially all of the material acts necessary to the prosecution of the insured's business or occupation, in substantially his customary and usual manner.'

"The error being (a) that the law therein enunciated was held applicable to an accident insurance policy and does not extend to and include the disability feature of an ordinary life insurance policy such as under consideration in this case; and (b) that by so charging the jury a new and entirely different contract was made between the parties to the said policy of insurance."

Messrs. Thomas Lumpkin and C.B. Ruffin, for appellant cite: "Contract": 112 S.C. 335; 135 S.C. 89: Cases distinguished: 136 S.C. 90; 120 S.C. 328; 106 S.C. 356; "Total disability": 37 A.L.R., 146; 97 Atl., 223; 113 N.E., 760; 103 N.E., 77; 29 L.R.A. (N.S.), 635; 90 S.E., 897; 1 Cyc., 270; 117 S.E., 772; 6 Cooley Briefs on Ins.2d 5548; 79 Ill. App. 145; 46 Ia., 631; 60 S.A., 791; 34 Fed., 721; 73 So. 566; 111 So. 453; 229 Pac., 282; 13 F.2d 212; 15 Atl., 885; 115 S.C. 53; 119 S.E., 481.

Messrs. Tatum Jennings and Mendel L. Smith, for respondent cite: Exceptions: 95 S.C. 382; 100 S.C. 277; 111 S.C. 248. "Total disability": 120 S.C. 328; 7 Ann. Cas., 815; 136 S.C. 80; 14 R.C.L., 1316. Evidence for jury: 127 S.C. 393; 138 S.C. 261.

Dec. 13, 1929. The opinion of the Court was delivered by

MR. JUSTICE BLEASE.

Not being able to agree in this case with the views of Mr. Justice Cothran, and the conclusion he wishes the Court to adopt, I propose, as briefly as I can, to give expression to my reasons for favoring an affirmance of the judgment below.

We adopt in the main the "statement," made up by the defendant-appellant, and consented to by the plaintiff-respondent. It is as follows:

On March 17, 1924, the defendant, Pacific Mutual Life Insurance Company, issued and delivered to the plaintiff a certain policy of life insurance for the face amount of $5,000. There was incorporated in this policy a clause by which the company agreed to waive the premiums and to pay to the insured certain monthly benefits of $75 each if, before the age of 60 and while the policy was in force, the insured became permanently and totally disabled as defined in the policy.

Plaintiff became totally deaf between the 10th and 15th of June, 1927, and filed claims for disability benefits the following September.

The defendant company refused to honor the claim on the ground that the plaintiff was not so disabled by his deafness as to prevent him from performing any work or engaging in any occupation or profession for wages, compensation, or profit.

The plaintiff brought this action in the Court of Common pleas for Lee County to recover the twelve monthly payments of $75 each alleged to be due and for the return of a premium of $234.80 paid under protest during pendency of the alleged disability. The matter came on to be heard before his Honor, R.W. McLendon, Special Judge, and a jury at the summer term of 1928.

At the conclusion of the plaintiff's testimony, defendant moved for a nonsuit on the grounds that the testimony clearly established that plaintiff was then and had been able to perform some work and to engage in some occupation or profession for wages, compensation, or profit. The presiding Judge overruled this motion and likewise overruled a motion for a directed verdict in behalf of the defendant upon substantially the same grounds.

The jury was instructed that the disability payments, if any, commenced to become due immediately upon receipt of due written proof of such disability, which was admitted to be September, 1927.

The jury returned a verdict in favor of the plaintiff in the sum of $935.51.

The provisions of the policy upon which the defendant based its defense, and which we are to consider in the determination of the appeal, are as follows:

"Should the insured, before the anniversary of this policy nearest the date on which he shall attain the age of sixty years and while this policy is in full force and no premium thereon in default, become permanently totally disabled, as hereinafter defined, the company, subject to the conditions hereinafter set forth, will waive the payment of all future premiums required under the conditions of the policy as they become due and pay the insured a monthly income of $75.00, such waiver to be effective and the first of such monthly income payments to become due and the period of liability to commence as of the date of receipt at the home office of the company of due written proof of such disability and a subsequent payment to be made on the first day of each month thereafter during the continuance of such disability. Such waiver of premiums and income payments shall not affect any other benefits or values provided under the policy.

"Permanent total disability, as used herein, is defined to mean:

"(1) Disability caused by accidental bodily injury or disease which totally and permanently prevents the insured from performing any work or engaging in any occupation or profession for wages, compensation or profit; or

"(2) Disability caused by accidental bodily injury or disease which totally prevents the insured from performing any work or engaging in any occupation or profession for wages, compensation or profit and which shall have totally and continuously so prevented the insured for not less than ninety days immediately preceding the date of receipt of due written proof thereof; or

"(3) The irrecoverable loss of the entire sight of both eyes, or the amputation at or above the wrist or ankle of both hands or both feet or a hand and foot, if such loss or amputation is caused by accidental bodily injury or disease."

From the verdict of the jury, and the judgment thereupon entered, the defendant, insurance company, has appealed on five exceptions, which, with the charge of the Court, will be reported. These impute error to the presiding Judge for his refusal to grant a motion of nonsuit, his failure to direct a verdict for the defendant, his declination to charge certain requests made by the defendant, and the giving of instructions presented by the plaintiff. The counsel for the appellant very properly have said that all the exceptions are interrelated, and assign practically the same errors; and, accordingly, they have discussed them together in their argument. In our disposition of the exceptions, we shall follow that excellent example.

The rulings made by the trial Judge were based upon the decisions of this Court in three cases. Brown v. Missouri State Life, 136 S.C. 90, 134 S.E., 224; Berry v. United Life Accident Insurance Company, 120 S.C. 328, 113 S.E., 141, and Taylor v. Southern States Life, 106 S.C. 356, 91 S.E., 326, L.R.A., 1917-C, 910. The respondent depends mainly upon those cases to support the judgment in his favor. The appellant contends, and Mr. Justice Cothran, in his proposed opinion, agrees with that contention, and has practically adopted the argument in its favor, that the cases cited are not applicable to the case at bar, and it is sought to distinguish this case from the principles announced in the mentioned cases.

The attorneys for the appellant and the respondent have both presented exceptionally able arguments in support of their respective positions, and have been a great assistance to the members of the Court in passing upon the questions to be determined and the preparation of opinions. As we see it, the appellant depends almost entirely upon decisions from jurisdictions other than our own to support its side of the case. On the other hand, the respondent confines his argument mainly to showing by our own cases that the rulings of the Court below were correct. It would take much unnecessary time for us to improve, if we could improve at, all upon the manner in which the respondent's counsel have presented the questions to be determined by the Court, and, for that reason, we have liberally quoted from their argument in our opinion.

The exceptions present the sole question of a proper determination of what constitutes a permanent total disability in an insurance policy of the kind under consideration. When this question is determined, the standard will be provided which may be easily applied to the rulings and conclusions of the presiding Judge, in the particulars assailed, and which will determine the correctness thereof.

The contention of the appellant is that, in order to constitute such a disability, it is incumbent on the insured to establish such a present, continuing, and permanent disability as a result of accidental bodily injury or disease, as will permanently, continuously, and wholly prevent the insured from performing any work, or engaging in any occupation, avocation, or profession for wages, compensation, remuneration, or profit, or from engaging in any gainful occupation, even though he should be so disabled as to prevent him from following that accustomed trade or business for which he has been trained and equipped.

The appellant's requests to charge were so constructed as to embody this view of the law which the presiding Judge should adopt as a proper instruction to the jury.

The respondent contended that a permanent total disability in this policy did not mean a condition of absolute helplessness which results only from a loss of reason, but an inability to do substantially all the material acts necessary to the conduct or prosecution of the business or occupation of the insured in substantially his usual and customary manner; that if, in the prosecution of his business, he was to do several acts and perform several kinds of labor, and he is thereby incapacitated to do and perform only one of such acts, he would be as effectually disabled from performing his business as if he were unable to do anything required to be done, if, while remaining in that condition, he suffers loss of time in the business or his occupation; that the words "total disability" as used in the policy do not contemplate an absolute physical disability to transact any kind of business relating 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, or in order to prevent his business from becoming unprofitable; and that the insured is deemed "totally disabled" when he is no longer able to do his customary tasks and such work as he has only been trained to do and upon which he must depend for a living.

These last-mentioned views were embodied in the requests to charge of the respondent, and were substantially adopted and charged by the presiding Judge as a proper interpretation of such clauses.

We will consider, first, the question as to whether the instructions based upon the adopted interpretation of these clauses was erroneous.

In the case of Taylor v. Insurance Company, 106 S.C. 356, 91 S.E., 326, 327, L.R.A., 1917-C, 910, the Court held that in such contracts one is "deemed totally disabled when he is no longer able to do his accustomed task, and such work as he has only been trained to do, and upon which he must depend for a living."

In the case of Berry v. Insurance Company, 120 S.C. 328, 113 S.E., 141, 142, which was the next case considered, the Court quotes with approval the above language from the Taylor case, and adds the following language from 7 Ann. Cas., 815, in support of its conclusions: "The rule prevailing in most jurisdictions is that the `total disability' contemplated by an accident insurance policy does not mean, as its literal construction would require, a state of absolute helplessness which can result only from loss of reason, since as long as one is in full possession of his mental faculties he is capable of transacting some part of his business, whatever it may be, although he is incapable of physical action. On the contrary, these Courts, giving consideration to the object of the contract, hold that the `total disability' contemplated by the agreement is inability to do substantially all of the material acts necessary to the prosecution of the insured's business or occupation, in substantially his customary and usual manner."

In the next case of Brown v. Insurance Company, 136 S.C. 90, 134 S.E., 224, 225, the court again sanctions the principle of construction declared in the extracts set out above from the Taylor and Berry cases, and further emphasizes its approval and adherence to the announced doctrine by an additional quotation from 14 R.C.L., 1316, as follows: "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."

The appellant attempts to draw some shadowy distinction in the argument submitted, between what is termed an "accident policy" and one of the character in question, and seeks to avoid the direct and controlling effect of one, at least, of these cases as wholly antagonistic to its contention by referring it to the former class.

The disability contemplated in the policy in the present case, as it was in the Brown case, supra, and presumably the Taylor case, supra, was such as may be caused by "bodily injury" as well as disease, resulting in permanent total disability.

The contention based on such distinction leads to the wholly illogical and untenable position that principles determinative of a permanent total disability as contemplated in a policy providing only for an accidental source of disability or incapacity, are inapplicable to a policy whose provisions add to this particular source of injury another disability originating from disease. No authority has been furnished to sustain any such distinction, nor is in accord with the plainest dictates of reason or common sense.

In the Taylor case, the clause under consideration was: "If the insured shall furnish to the company due proof that he has become physically disabled, and wholly, continuously, and permanently incapacitated from carrying on any gainful occupation, then in such case, immediately on such proof as aforesaid being furnished to the company, the policy shall mature as an endowment to the extent of one-fourth of the amount insured hereunder, which shall thereupon be paid in cash to the insured, in part payment of the amount insured hereunder."

In the Brown case, the clause under consideration was: "If the said insured shall become totally and permanently disabled before attaining the age of sixty * * * the total and permanent disability referred to herein may be due either to bodily injuries or disease occurring and originating while this contract is in full force * * * and must be such as to prevent the insured from engaging in any gainful occupation."

We think to hold that principles, applicable to the construction of such clauses as these, would be inapplicable to the clause now under consideration, for the reasons urged, would fall little short of a reproach upon the law.

It is therefore perfectly obvious that the respondent's requests to charge, in the particulars in which they are here questioned, were in absolute harmony with the repeated utterances of the Court, should have been charged, and the requests of appellant should have been refused, as they were clearly not in accord therewith.

Both the appellant and Mr. Justice Cothran have called our attention to a number of decisions from jurisdictions other than our own in support of the claim that the trial Judge was in error as to his conclusions as to the law involved in the case. The decisions of these other jurisdictions cannot, and should not, have any effect with our Court, when practically the identical questions have already been determined by our own decisions. In the recent case of State ex rel. Richards v. Moorer et al., 150 S.E., 269, Mr. Justice Stabler, speaking for the Court en banc, said, in effect, that without urgent reasons or clear manifestation of error this Court should not abandon a doctrine or principle declared to be sound and the law of this jurisdiction, and substitute therefore the decisions of the Courts of other jurisdictions. With that view another associate justice and eleven Circuit Judges announced themselves in thorough accord. Three of the justices of this Court and three Circuit Judges did not agree with all the conclusions of Mr. Justice Stabler in the opinion there written by him, but there was no indication that any one of these dissented from the view referred to. It seems clear, therefore, that the holding announced by Mr. Justice Stabler had the approval of the Court en banc, consisting of the five justices of the Supreme Court and the fourteen Circuit Judges.

We have not examined the hundreds of cases from other jurisdictions, which bear in some way, directly or remotely, upon the main point in issue here. We have read, however, quite a number of these decisions. It is not necessary to attempt any kind of a review of them. They are full of inconsistencies, antagonisms, and contrarieties. No human being could reconcile them. We apprehend that the main reason for this great divergence of opinion is due to the fact that many judges of appellate Courts have endeavored to substitute their own opinions for the opinions of the jurors who tried the cases. Perhaps some of these judges did right, in those jurisdictions which do not happen to have the high regard for the verdicts of juries which this Court has held for more than a hundred years. Out of all this maze of uncertainty and confusion, we have found boldly standing forth in its majesty of reason and justice one well-announced principle, which is in entire harmony with the decisions of our own Court. The principle to which we refer is well expressed in the general text of Corpus Juries as follows: "The Courts have not given any general definition of the words `total disability,' and what amounts to a total disability is a relative matter, and depends largely upon the circumstances of each case, and upon the occupation and employment in which the person insured is engaged." 1 C. J., 462. To the same effect, see 14 R.C.L., 1315.

Mr. Justice Cothran is of the opinion that a very strong expression of Mr. Justice Gage, who wrote the opinion in the Taylor case, supra, was not called for by the facts of the case, and that the expression was clearly erroneous. The language referred to is this: "* * * He is deemed totally disabled when he is no longer able to do his accustomed task and such work as he has only been trained to do and upon which he must depend for a living." We are willing to concede that the same result would have been attained in the Taylor case without the insertion of the language which our distinguished brother is disposed to think should have been left out. The fact remains that Mr. Justice Gage used the language. We can rest assured, if that distinguished jurist had not thought it proper for him to write those words, he would not have written them. It is fair, too, for us to assume that Justices Hydrick, Fraser, and Watts, who concurred in the opinion of Mr. Justice Gage, found no fault with either the idea sought to be expressed or the language in which it was clothed. It has been recognized and followed in the Courts of this state for thirteen years.

Mr. Justice Cothran reminds us that many blind or deaf people, and some who have suffered the loss of a limb, have yet been able to hold high positions of honor and trust, and have engaged in lucrative avocations. He has especially called attention to a remarkable Confederate soldier and the wonderful Helen Keller. The trouble with the argument he advances along this line is that it is based upon the abilities and doings of exceptional men and women. The world is not made up of these exceptional people, and the law does not take them into much consideration in setting up its standard. We must deal with the ordinary people, the average of men and women. To follow to a last possible analysis the argument of the appellant in this case, supported by our learned brother, would result in making it almost humanly impossible for an insured in a policy like the one involved in this case to ever collect benefits because of "total disability." If a justice of this Court, insured by one of these policies, should become entirely deaf, he, of course, could not continue to perform the duties of his office; and perhaps he could not even find it possible to make a living in the practice of the law, his former profession. He might eke out a bare living by sitting at the door of the Supreme Court chamber, selling lead pencils to the members of the bar, who, with the milk of human kindness in their hearts, might become purchasers. The earning of a living in that manner would defeat his claim for "total disability" under the argument so strenuously advanced.

The remaining question is whether the presiding Judge was in error in overruling the motions for a nonsuit and directed verdict.

It is too well established in this state to require any discussion that in motions of this character all the testimony, and the reasonable inferences deducible therefrom, are to be taken most favorably to the party against whom the motion is directed.

Again, it is not the function of the Court in such cases to weigh the testimony, but simply to determine if there is any relevant and competent testimony adduced reasonably tending to establish the material elements in the plaintiff's cause of action. As well and concisely stated by the Court in the case of State v. Villepigue, 127 S.C. 393, 121 S.E., 258, 259, in such motions, "It is for the Judge to determine the existence of such evidence; the effect or force thereof is for the jury." (Emphasis added.)

The following language used by the trial Judge in the Taylor case was approved by the Court: "I think the case will have to go to the jury. I think every case will have to stand on its own bottom as to disability. I am almost prepared to say that what might be disability to one person might not be to another. For example, leaving out the special case mentioned in the policy, take a lawyer that loses both of his legs; he could still pursue his vocation; but if he was a farmer or a carpenter he could not. So it depends entirely on the individual, I think, and that, of course, would be a matter for the jury."

And there said Mr. Justice Gage: "It would be like squaring the circle for a Judge to undertake to say just at what juncture a part became a whole, at what period a disability is enlarged from partial to total." (Emphasis added.)

In the recent case of Levan v. Insurance Company, 138 S.C. 253, 136 S.E., 304, 307, the Court declared: "Coming to the case at bar, it was for the jury to say whether or not Levan was totally and permanently disabled as defined in the policy, and at the time the premium came due, by reason of this disability, whether he was incapable of furnishing proof, and whether the beneficiary gave notice with reasonable promptness under all the circumstances."

Applying these elementary and often sanctioned principles, and assuming that the trial Judge was correct in his interpretation of the clauses involved, as we have held, the final inquiry is whether there is any competent evidence in this case reasonably tending to show that the respondent was suffering from a permanent and total disability under the policy, by reason of an absolute and permanent deafness, and this question involves a brief consideration of the testimony in the cause. There was testimony offered tending to establish substantially the following facts:

The policy in question was issued to the respondent on the 17th day of March, 1924. This policy contained the clauses which have already been set out. The respondent became totally and permanently deaf about the middle of June, 1927, and filed his claim for monthly indemnity in the following September, which payment was refused. He thereafter paid the annual premium for 1928, under protest and without waiving any of his accrued rights under the policy.

The respondent was a married man with a wife and two young children, and lived in the Town of Bishopville. He finished the course of study in the Bishopville common and high schools, graduated at the South Carolina College, now the University of South Carolina, in 1903, and in the fall of the same year finished a three months' course in business and banking at the Eastman Business College at Poughkeepsie, N Y

During the years 1904 and 1905 he was employed as assistant cashier of the People's Bank, Bishopville, S.C. He then went to his father's place in 1906 and farmed from this time through the year 1912. In the fall of 1912, or the year 1913, he formed, and became general manager of, a mercantile corporation known as the Woodward-McCutchen Company, authorized to engage in a general supply business and the purchase of cotton, which latter enterprise, according to custom, was conducted on the public streets of the Town of Bishopville. In the fall of 1925, he purchased the stock of this concern and operated the same until his incapacity in June, 1927. This business was finally closed out in the usual course about the 1st of January, 1928.

As the manager and owner of this business, he had to pass on credits, constantly confer with customers and those who sought credit advances, secure information concerning the nature and value of proffered securities, keep posted on the progress and condition of growing crops and many other matters necessarily incident to an intelligent management of such business.

The respondent had not farmed in about ten years at the time of his incapacity, but during the years of 1926, 1927, and 1928 his brother operated a farm for them individually, for which the brother received a salary and under an agreement was entitled to an equal division of crops, but the testimony shows that during the last year the farm was operated at a substantial loss, and furnished but little profit the previous years.

The respondent had not kept any books for ten or fifteen years, and testified that in his present condition he did not believe that he could keep books satisfactorily.

He further testified that he bought cotton in accordance with the custom on the public streets, but ascertained after his disability that he could not prosecute this work, and was even forced to employ a man to take care of his own customers, and that he was no expert grader of cotton.

At the time of the issuance of this policy, he was engaged solely as manager of the Woodward-McCutchen Company, and such was his sole occupation up to the time of his disability.

The respondent also testified that it was by reason of his disability that he was forced to close out his business in the fall of 1927, and even had to depend upon clerks to do the work of closing out.

He further testified, with regard to the effect of his present condition on his ability to perform his accustomed duties, that he was "totally incapacitated" to "buy cotton or do a supply business," and that he had not been able to find any "work, profession, or occupation" that he could profitably pursue in his present condition. In his letter of demand for indemnity upon the company he stated plainly at that time that he was totally incapacitated for his business, and in another letter stated that he was suffering from "total disability."

Dr. C.W. Harris, a physician of thirty-four years' experience, testified that the respondent was "totally disabled to transact any ordinary business," and was disqualified to farm.

Mr. J.E. McCutchen, the brother of the respondent, testified that the latter was "totally disabled from handling business successfully," and that this condition was permanent.

Dr. H.M. McClure, a witness for the appellant, who testified while "deafness would hurt a good deal" and would render one "unable to carry on his business satisfactorily," gave to the company a signed confidential total disability report on the case in which the respondent was declared totally disabled. This witness, when cross-examined at the trial in regard to what he understood the words "total disability" to mean, said that he applied the term to "hearing" alone, and that he, referring to respondent, "still has his sight," and therefore was "not totally disabled;" that what he had in mind in testifying as to total disability was that condition which existed when a man was "knocked out completely; lost his reason," and that the respondent was not totally disabled, as "there were some things he could do."

It cannot be questioned from the record that the respondent in this case is a man of outstanding integrity and character, and, if so, he certainly would not be inclined to misrepresent, consciously, his own physical condition and capacity, which are best known to him.

In the trial, he appeared in his home town and home county before a presiding judge and twelve jurors who either knew him personally, or knew him by reputation, and likewise were acquainted with the witnesses in the case. These jurors saw the respondent, and were much more able than the members of this Court to judge as to his physical condition and the disabilities under which he labored.

Total deafness may mean "total disability," as that term is known to our law, as to some particular person, and it may mean practically nothing, when applied to some other person, in the matter of earning a livelihood or ability to engage in an occupation or employment. There are many, many things to be considered in correctly determining the effect of deafness upon a person's ability and capacity. Each case must stand upon its own peculiar facts, for as the authorities hold, "total disability" is a relative matter. It is impossible for this Court to lay down any rule of law, which could operate as an absolute standard or guide in the many cases which may have to be determined. The safe rule — in fact the only rule — when there is conflicting evidence, is to permit twelve men, constituting a jury, to hear the evidence, see the witnesses, and determine what is right.

There was ample testimony to warrant the presiding Judge in submitting the case to the jury.

A careful examination of the record shows that the special presiding Judge was exceedingly fair to both parties in the trial. There is no question here as to any ruling he made as to the admission or rejection of testimony. He charged the law fairly and clearly in accord with the decisions of this Court. The issues were for the jury, and their verdict was against the appellant. There is no error of law which warrants this Court in disturbing that verdict.

A majority of the Court agreeing with these views, the judgment of this Court is that the judgment below be affirmed.

MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES STABLER and CARTER, concur.

MR. JUSTICE COTHRAN (dissenting):

This is an action for certain benefits, as will be explained, in a policy of insurance issued upon the life of the plaintiff, in the sum of $5,000.00. There was incorporated in this policy a clause by which the company agreed to waive payment of the premiums and to pay to the insured a monthly benefit of $75.00 if, before he reached the age of 60 years and while the policy was in force, the insured should become permanently and totally disabled as defined in the policy.

The plaintiff became totally deaf about the 10th of June, 1927, nearly three years after the issuance of the policy, and filed a claim with the company for the disability benefits in September following. The company declined to honor the claim upon the ground that the plaintiff was not so disabled by his deafness as to prevent him from performing any work or engaging in any occupation or profession for wages, compensation, or profit.

The plaintiff brought this action on February 13, 1928, seeking to recover twelve monthly payments of $75.00 each, alleged to be due, and for the return of a premium of $234.80 which he had paid under protest, during the pendency of the alleged disability.

The case was tried before his Honor, R.W. McLendon, Special Judge, and a jury, at the summer term of 1928.

At the conclusion of plaintiff's testimony, the defendant moved for a nonsuit upon the ground that his disability did not come within the terms of the policy. The motion was overruled, and, at the conclusion of all of the testimony the defendant moved for a directed verdict upon the same ground, which also was refused.

The jury returned a verdict in favor of the plaintiff for $935.51, and, from the judgment entered upon that verdict, the defendant has appealed upon exceptions which fairly present the questions hereinafter discussed.

The provisions of the policy, which were set up by the defendant as a defense to the plaintiff's action, are as follows:

"Permanent Total Disability Benefit.

"Should the insured, before the anniversary of this policy nearest the date on which he shall attain the age of sixty years and while this policy is in full force and no premium thereon in default, become permanently totally disabled, as hereinafter defined, the company, subject to the conditions hereinafter set forth, will waive the payment of all future premiums required under the conditions of the policy as they become due and pay the insured a monthly income of $75.00, such waiver to be effective and the first of such monthly income payments to become due and the period of liability to commence as of the date of receipt at the home office of the company of due written proof of such disability and a subsequent payment to be made on the first day of each month thereafter during the continuance of such disability. Such waiver of premiums and income payments shall not affect any other benefits or values provided under the policy.

"Permanent total disability, as used herein, is defined to mean:

"(1) Disability caused by accidental bodily injury or disease which totally and permanently prevents the insured from performing any work or engaging in any occupation or profession for wages, compensation or profit; or

"(2) Disability caused by accidental bodily injury or disease which totally prevents the insured from performing any work or engaging in any occupation or profession for wages, compensation or profit and which shall have totally and continuously so prevented the insured for not less than ninety days immediately preceding the date of receipt of due written proof thereof; or

"(3) The irrecoverable loss of the entire sight of both eyes, or the amputation at or above the wrist or ankle of both hands or both feet or a hand and foot, if such loss or amputation is caused by accidental bodily injury or disease."

The undisputed personal history of the insured was as follows: He attended the common and high schools at Bishopville; graduated at the University of South Carolina in the spring of 1903, and in the same year graduated in bookkeeping and banking at Eastman Business College, Poughkeepsie, N.Y.; in 1904 was assistant cashier of the People's Bank of Bishopville and so continued until 1906; he then commenced farming upon his father's place and continued such operations until 1912; he then became an organizer and general manager of a corporation known as Woodward-McCutchen Company, doing a general supply business and buying cotton; this engagement continued until 1925, when he bought out the mercantile business and continued it until its liquidation on January 1, 1928; since 1912 he has been jointly interested with his brother farming, and in 1928, at the time of the trial, they were jointly cultivating between 350 and 400 acres of cotton and in 1927 had made 65 to 75 bales of cotton; plaintiff admitted that he could grade cotton, and as well as he ever could, and that he was as good a farmer as the average; outside of his deafness his physical condition is good; he appears otherwise to be a normal, healthy, and educated man, certainly qualified to engage in some kind of gainful occupation, and, if so, not disabled within the terms of the policy.

It will be observed that the provision for disability benefits, in addition to the indemnity payable upon the death of the insured, is an extraordinary one, and of very great value where the insured shall have become entitled to it under the conditions named. Such being its character, it is but reasonable and just that the insured comply with such conditions in order that he may receive the benefit of it. The provision has no place in ordinary life policies; it is a matter of contract, perfectly legal and unambiguous; and no reason appears why the contract as voluntarily entered into between the parties may not be enforced. The policy provides not only life insurance in the ordinary acceptation of the term, but it provides for not only the cessation of the payments of annual premiums but for a monthly income of $75.00 so long as the disability continues. It is but natural that so great a benefit, carrying the insured for the whole amount of the policy, without the payment of premiums and with the payment of the monthly income, should be hedged about with what may be considered drastic conditions. Whether drastic or elastic, they are perfectly legitimate, and therefore such as may, by convention of the parties, be imposed.

The policy provides in general terms, first, that the insured shall become "permanently totally disabled," and, unwilling to leave these terms to be debated as to their meaning, proceeds to define "permanent total disability," and to give the insured the benefit of the condition if he can bring his disorder within one of three classes: (1) A disability which totally and permanently prevents him from performing any work or engaging in any occupation or profession for wages, compensation or profit; (2) a disability which totally prevents him from such engagement for not less than ninety days immediately preceding proof thereof; (3) the loss of the sight of both eyes and other misfortunes named, not pertinent to the present inquiry. NOTE. — It will be observed that subdivision 1 refers to a total and permanent disability, lasting for all time while the second refers to a total disability which is temporary in its nature and continues for at least ninety days. The exclusion of deafness in the third subdivision, referring to the loss of both eyes and other misfortunes, is significant.

The insured is not claiming under either the second or third subdivision, but under the first; A total and permanent disability which prevents him from performing any work or engaging in any occupation or profession for wages, compensation, or profit, which, of course, if the contract is to be allowed to control, he is obliged to successfully maintain.

The only disability sought to be established by the insured was deafness. I do not think by any conceivable construction of the words "total disability" can deafness of itself be embraced within its meaning. The loss of this faculty by itself does not deprive one of the opportunity and privilege of "performing any work or engaging in any occupation or profession for wages, compensation or profit." Numerous fields of endeavor are open to such persons who are unfortunately deprived of this sense. There was no showing that deafness materially affected the proper functioning of the other senses and organs of the body, and the Court may well take cognizance of this fact. The insured is a highly trained man, exceedingly above the average in intelligence, judgment, and ability, and to say that his inability to perform any work by reason of such deafness is to assume that his education, natural talents, and business experiences are of no avail. It appears that he has been since the commencement of the disability complained of, and is now, performing work for compensation or profit, a fact which is abundantly supported by the record. He admits that he owned and had general supervision over the management of his large mercantile establishment until he decided to liquidate its affairs on December 31, 1927. He also stated that he and his brother have been for a number of years past, and were at the time of the trial of the case, engaged in intensive joint farming operations. These two instances, in themselves, are sufficient to refute the claim that he is disabled as provided in the policy, and that he is not now able to perform any work or to engage in an occupation or profession for compensation, gain, or profit.

The case of Brown v. Ins. Co., 136 S.C. 90, 134 S.E., 224, 225, does not at all aid the case of the plaintiff. There was abundant evidence in that case to substantiate the claim of the plaintiff that his disability prevented him from engaging in any gainful occupation, as the policy provided; and, upon that ground, the judgment, in a law case, for the plaintiff, was affirmed. The plaintiff testified that he was totally unable to do anything, and had been advised by his physicians not to attempt it. His physicians testified that he was totally disabled from his waist down, and would remain so as long as he lived — that he could not and should not attempt to do any kind of work, mental or physical, that it would prolong and aggravate his disease; that "his disability is of such a nature as to prevent plaintiff at all times hereafter from engaging in any gainful occupation."

And so with the Taylor case, 106 S.C. 356, 91 S.E., 326, 327, L.R.A., 1917-C, 910. That case was decided upon the theory that "the man of waning years, of small means, of no education, totally dependent upon the strength of his body for a livelihood, is bankrupt when the marvelous and mysterious parts of his organism go wrong. If they do not answer the summons of his will, if indeed it is able to summon them, to do the common tasks, he is undone, and for his purposes totally undone."

It is true that the learned justice in that case observed: "* * * He is deemed totally disabled when he is no longer able to do his accustomed task, and such work as he has only been trained to do, and upon which he must depend for a living."

The case did not call for such an expression which is clearly erroneous. The writer in his boyhood days knew a German who was a member of Co. B, Orr's regiment, his father's company; he was a shoemaker, and in one of the battles of the war lost a leg amputated near the hip, which totally incapacitated him for his accustomed occupation; at the close of the war his captain set him up as a cigarmaker, at which occupation he made a comfortable income and amassed a small fortune.

To hold that one may recover under a policy which provides that his disability must be such as is here described, upon proof simply that he has been disabled from pursuing his usual occupation, without showing that he is disabled from every other, is manifestly reading into contract something that is not there.

There is a sharp line of distinction between the cases which involve a disability clause which pertains to the usual occupation of the insured and those which involve the very different clause which appears in the present policy.

As is said in Hurley v. Ins. Co., 198 Iowa, 1129, 199 N.W., 343, 344, 37 A.L.R. 146: "Many cases have been before the Courts involving construction of contracts of this character, which, however, are not always identical in phraseology. The cases fall quite readily in two general classes: Those wherein the policy provides for idemnity if the insured is disabled from transacting the duties pertaining to the occupation in which he is then engaged, and those wherein the policy provides for indemnity if the insured is disabled from performing any work or following any occupation. This case belongs to the latter class."

In that case the Court further said: "The fifth instruction is equally erroneous. The contract of insurance binds defendant to indemnify plaintiff for loss of time while totally disabled and prevented from the transaction of all kinds of business. The Court tells the jury that this does not mean what it plainly says, but that defendant will indemnify plaintiff for loss of time while disabled, and prevented from the transaction of any business in which he was qualified to engage. Under this instruction the defendant's liability is governed by the plaintiff's versatility. If the plaintiff is skilled in but one business, and can pursue but one employment, and is disabled from pursuing that he may recover; but if he has greater skill, and can turn his attention to other pursuits, he cannot recover, unless he is disabled from engaging in any employment for which he is qualified. The parties have not incorporated any such condition in the contract. There is no reason nor justification for wresting from the language employed its natural signification, and placing upon it a construction which substitutes for the contract which the parties have made one of entirely different signification, and one imposing upon the defendant a greatly enlarged liability. The language of the parties is plain, unambiguous, and needs no construction. It provides that defendant shall be liable for loss occassioned by being totally disabled from all kinds of business. Effect should be given to this language. It should be understood to mean what it says. It cannot be claimed that it means that defendant will indemnify on account of loss sustained by being partially disabled from some kinds of business; and yet this is the construction which the two instructions we have been considering place upon it."

In Buckner v. Ins. Co., 172 N.C. 762, 90 S.E., 897, the Court said: "If the policy contained an agreement to pay in case plaintiff was totally disabled from following his usual occupation (as was the contract in many of the adjudicated cases), we should hold that he is entitled to recover upon the facts of this case. But the evidence fails to disclose a total disability that will `permanently, continuously, and wholly' incapacitate plaintiff `from pursuing any and all gainful occupations.' The authorities are practically manimous that under the terms of this policy plaintiff cannot recover without showing a bodily injury that will incapacitate him, not only from following his usual avocation of fireman, but also from pursuing any other gainful occupation. The language is too plain, and the meaning too unmistakable, to permit an enlargement of the terms of the contract by construction."

Continuing: "Referring to the meaning of the words `wholly disabled,' May on Insurance, § 522, says that the ability of the insured to engage in some business will prevent recovery unless the insured is disqualified to engage in any occupation. Mr. Beach says, substantially, that `total disability' that would entitle a member of an insurance order to recover must be not only permanent, but total, so as to render him unable to perform or direct any kind of labor or business. Ins. § 262. Bacon says that `total disability' naturally means being totally disabled for all kinds of business unless by the contract the disability is to be only from the usual occupation of the insured."

Mr. Cooley, in the Second Edition of his Briefs on Insurance, vol. 6, p. 5548, says: "The provision may limit total disability to inability to carry on any and all kinds of business. Under such a clause the insured must be unable to perform, not only the duties of his usual occupation, but the duties of any other occupation" — citing Supreme Tent of Knights of Maccabees of the World v. King, 79 Ill., App. 145; Lyon v. Railway Passenger Assur. Co., 46 Iowa, 631; Supreme Tent of Knights of Maccabees of the World v. Cox, 25 Tex. Civ. App. 366, 60 S.W. 791.

In Lee v. Ins. Co., 188 N.C. 538, 125 S.E., 186, the syllabus is: "Language of policy, `wholly incapacitated and thereby permanently and continuously prevented from engaging in any avocation whatsoever for remuneration or profit,' means that disability must incapacitate insured, not merely from pursuing usual avocation, but from engaging in any avocation for remuneration or profit, whether actually profitable or remunerative."

In Albert v. Order of Chosen Friends (C.C.) 34 F. 721, it was held: "So, where the contract provided that the insured must be unable to follow `his usual or other occupation,' one who, though unable to follow his own trade or profession, could perform the duties of another occupation, could not recover."

In 1 C.J. 465, it is said: "Where the policy, while providing indemnity when the insured is permanently disabled from following his usual or other occupation, at the same time defines disability which shall entitle him to recover as one which shall permanently prevent him from following any occupation whereby he can obtain a livelihood, it has been held that there can be no recovery if the insured can earn a living at any other occupation, although incapacitated for his original profession or occupation."

And: "But the question whether the insured is disabled from prosecuting some other occupation is to be determined by a consideration of his education, experience, age and natural ability."

And further: "Under a provision for an indemnity where the insured is `totally disabled and prevented from the transaction of all kinds of business' there can be no recovery when the insured is totally disabled in his own occupation merely, provided he is able to engage in some other pursuit."

And further: "Under a provision for the payment of indemnity where the insured sustains `a total permanent disability to perform or direct any kind of labor or business,' it is necessary to show that the disability is total as well as permanent. The phrase `total inability to labor' means a total disability to earn a livelihood at any employment and if the insured, although unable to earn a livelihood at the particular labor in which he was engaged at the time of the injury, is capable of making a living at some other employment, he may not recover."

In Starnes v. U.S. (D.C.), 13 F.2d 212, it is said: "`Total disability' is impairment of mind or body rendering it impossible for disabled person to follow any occupation, and is deemed permanent when founded on conditions rendering it reasonably certain throughout person's life."

In Baltimore Ohio Employees' Relief Ass'n v. Post, 122 Pa. 579, 15 A. 885, 2 L.R.A. 44, 9 Am. St. Rep. 147, the Court said: "The phrase `total inability to labor,' contained in the constitution and by-laws of an employees' relief association, means a total inability to earn a livelihood in any employment, and not at the * * * employment at which the member was engaged at the time of his injury."

In 1 Cyc. 270, it is said: "Where the phrase `total inability to labor' is used, it is more inclusive, and means a total disability to earn a livelihood at any employment."

In Rhodes v. Ins. Co., 5 Lans. 71, 77, the Supreme Court of New York says, in a case similar to this: "While the policy is to be liberally construed, its provisions cannot be disregarded. To make the defendant liable, total disability to labor must be shown."

Mr. Joyce says: "Total disability and similar expressions in accident and benefit insurance. In ascertaining the meaning, reference must be had to the entire contract and the exact terms used. The words may necessitate that the assured should be so far disabled as to prevent his following any occupation or labor." Insurance, § 3031.

Mr. Joyce further says: "In an Ohio case, under a policy providing for periodical payments while insured is totally disabled and prevented from the transaction of all kinds of business, it is held that the contract should be enforced as it reads, and that the assured cannot recover because totally disabled for his own trade or business if he retains health, strength and physical ability sufficient for the pursuance of any other vocation, whether he is conversant with the same or not." § 3031.

If the contention of the plaintiff should be sustained, that the disability refers to the usual occupation of the insured, in spite of the express provisions of the policy, any permanent injury which would affect the ability of the insured to perform the customary duties of his occupations would be considered a total and permanent disability, regardless of his capacity to engage in some other occupation. Hundreds of men and women, blind or deaf, have filled position of honor and trust, congressmen, lawyers, teachers, ministers of the gospel, and many others. One notable instance that comes to mind is that of Helen Keller, deaf, dumb, and blind, who has made a national reputation as a scholar, teacher and philanthropist.

In 1 Couch Enc. Ins. Law, 363, it is said: "If the terms of the policy are clear, consistent, and unambiguous, no forced or strained construction can be indulged, even to give effect to the policy, for a contract of insurance cannot be given an interpretation at variance with the clear sense and meaning of the language in which it is expressed. So, while every reasonable inference should be drawn to sustain insurance written and accepted in good faith, this does not mean that facts should be distorted, and unnatural and unreasonable inferences resorted to."

And: "Where an insurance contract is not ambiguous, words will not be interpolated for the purpose of rendering it ambiguous, or subject to a construction other than that indicated to a construction other than that indicated by the clear import of the language used. And an insurance policy, like any other contract, cannot have new terms inserted therein, nor original terms altered or withdrawn, save with the consent of the contracting parties, or their duly authorized agents acting within the scope of their authority."

And: "In the absence of statutory provisions to the contrary, insurance companies have the same right as individuals to limit their liability and impose whatever conditions they please upon their mutual and reciprocal obligations, not inconsistent with public policy."

And: "Consequently, as the parties to a contract of insurance have the right to contract as to the risks the company will or will not assume, provided the same be not in contravention of law or public policy, and it is presumed that they fully understand its provisions, if the terms of the contract are clear and express, the Courts cannot extend or enlarge the contract by implication or construction so as to embrace an object or limitation distinct from that originally contemplated and not included in the express provisions; nor can the Court make or vary the contract to meet or fulfill any notions of abstract justice or moral obligation, no matter how stringent its terms may be. Again, since in insurance contracts the insurer undertakes to guarantee the insured against loss or damage upon the exact terms and conditions specified in the agreement, and upon no other, the Courts cannot change the contract, or make a new one for the parties, in violation of plain and unambiguous language used by the parties; rather, it is their duty to enforce and carry out the one already made, without importing anything into the contract by construction contrary to its plain meaning or express terms."

Even if the defendant's motion for a nonsuit or for a directed verdict cannot be sustained, an examination of the Judge's charge, the requests of the plaintiff charged, and those of the defendant refused, covered by exceptions, will demonstrate that the principles announced by him are completely and inevitably antipodal to the principles above announced, which are sustained by the overwhelming weight of authority.

The judgment of this Court should be that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court, with instructions to enter judgment for the defendant under Rule 27.