Opinion
13970
January 9, 1935.
Before SEASE, J., Anderson, July, 1933. Judgment affirmed.
Action by Jater DuBose, as administratrix of the estate of Thomas DuBose, deceased, against the Pioneer Life Insurance Company and another. Judgment for defendants, and, from an order overruling plaintiff's motion for a new trial, plaintiff appeals.
The order directed to be reported is as follows:
"This case was tried before Judge Thomas S. Sease at Anderson, S.C. in April, 1934, and resulted, after the conclusion of the testimony, in a verdict directed for the defendants by the order of the Court. Plaintiff's attorney now, upon due notice, moves before me, Judge Sease having left the circuit in the meantime, for a new trial upon after-discovered evidence. Attached to the notice of the motion are affidavits of Mr. Earle, John G. Burriss, and three other persons whose testimony is relied upon as constituting the after-discovered evidence upon which the motion was made."
"The three witnesses upon whose testimony plaintiff relied in this motion are Ira W. Stratton, W.L. Hill, and W.M. Metz. In his affidavit Stratton states that in February or March, 1932, he worked some for Tom DuBose on his job at Gregg Shoals and that he was paid therefor by DuBose. Hill states in his affidavit that in the early spring of 1932 Stratton and Joe Robertson (colored) substituted some for DuBose. Metz states in his affidavit that about February, 1932, he noticed a decided change in DuBose's physical condition, and that Stratton and Joe Robertson substituted some for DuBose along at that time. The statements contained in these affidavits are very indefinite as to both the time and the number of these substitutions. In fact, it is not clear from the affidavits that these substitutions were made necessary by the physical condition of DuBose. I am not inclined to view that the alleged testimony of these witnesses is of such a nature that it would have a bearing on the case.
"At the trial of the case Joe Robertson was offered as a witness for plaintiff, and he testified as to these same substitutions, and that testimony was before Judge Sease when he directed a verdict in the case. Having directed a verdict for defendant, with the testimony of Joe Robertson before him, there is no doubt in my mind that he would have done the same thing if he had had also the testimony of Stratton, Hill and Metz, as their statements are certainly not any stronger than the testimony offered by Robertson. It appears to me, therefore, that I would be attempting to reverse the order of Judge Sease if I should hold that a new trial should be granted on the strength of these affidavits.
"Furthermore, there is no affirmative showing made to the effect that due diligence was exercised for the purpose of obtaining the testimony of the three witnesses above mentioned. It appears that these three witnesses were employed by the Southern Public Utilities Company along with Tom DuBose for a number of years. It does not appear that any effort was ever made to interview these witnesses before the trial of the case. It does appear that counsel for plaintiff visited the plant where all of these men were working at some time before the trial of the case and on that occasion talked to one or more of the witnesses who testified at the trial. I find, therefore, the plaintiff has failed to show the exercise of such diligence in procuring the testimony of these witnesses as the law requires in such cases."
Mr. C.B. Earle, for appellant, cites: As to directed verdict: 174 S.E., 907; 175 S.E., 425. Total disability: 136 S.C. 90; 170 S.E., 778; 166 S.C. 317; 166 S.C. 367; 174 S.E., 235; 14 R.C.L., 1328; 154 S.E., 221; 143 S.E., 670; 138 S.C. 272; 54 A.L.R., 606; 133 S.C. 297; 140 S.C. 386; 46 C.J., 278; 121 S.C. 303. New trial: 106 S.C. 437; 165 S.C. 355.
Messrs. Watkins Prince and Mann, Plyler Arnold, for respondent, cite: Total disability: 166 S.C. 316; 164 S.E., 878; 166 S.C. 357; 164 S.E., 881; 174 S.E., 235; 172 S.C. 404; 136 S.C. 90; 134 S.E., 224. New trial upon after-discovered evidence: 165 S.C. 355; 164 S.E., 11; 171 S.C. 131; 171 S.E., 621.
January 9, 1935. The opinion of the Court was delivered by
This action by Jater DuBose, as administratrix of the estate of Thomas DuBose, deceased, against the defendants, Pioneer Life Insurance Company, a corporation, and Pioneer-Pyramid Life Insurance Company, a corporation, was commenced in the Court of Common Pleas for Anderson County July 8, 1933, for the purpose of recovering judgment against the defendants in the sum of $1,000.00. with interest, under a group life insurance policy, issued by the said Pioneer Life Insurance Company to R.N. Ward, trustee, on the lives of the employees of Southern Public Utilities Company; it appearing that upon consolidation of the said insurance companies, thereafter known as Pioneer-Pyramid Life Insurance Company, the said Pioneer-Pyramid Life Insurance Company assumed all of the obligations of the Pioneer Life Insurance Company, including the certificate of insurance herein mentioned. The action is based upon the certificate issued under said group policy to Thomas DuBose, deceased, who died July 4, 1932, and upon the permanent and total physical disability of said insured alleged to have existed prior to the cancellation of the said policy. The answer of the defendants interposed a general denial, alleged failure to give proper notice, and that the insurance policy in question was duly cancelled March 23, 1932. The action was tried at the April, 1934, term of said Court before his Honor, Judge T.S. Sease, and a jury, resulting in a directed verdict in favor of the defendants. Due notice of intention to appeal from the said order of his Honor, Judge Sease, directing a verdict in favor of the defendants, and, from the judgment entered on the verdict, was served by the plaintiff upon the defendants. The plaintiff also on May 9, 1934, served upon counsel for the defendants notice of motion for a new trial upon after-discovered evidence, and this motion was heard by his Honor, Judge G.B. Greene, at his chambers, Anderson, S.C. May 24, 1934, which motion his Honor, Judge Greene, after due consideration, refused. Thereafter, within due time, the plaintiff served notice of intention to appeal from the said order of Judge Greene, overruling said motion.
The allegations of error imputed to the trial Judge by the appellant, as stated in appellant's brief, are the following:
"1. Did the trial Judge commit error in directing a verdict in favor of the respondents?
"2. Should appellant's motion for a new trial upon after-discovered evidence have been granted?"
The order directing a verdict for the defendants was based "on the ground that under the evidence and the law applicable thereto the insured was not totally and permanently disabled during the life of said insurance contract, within the meaning of the disability clause therein, and under the law of this State; the uncontradicted testimony showing that the insured during the life of the contract was engaged at his usual job, and drew his usual pay, and that he so continued for a period of three months thereafter."
It would serve no useful purpose to quote the testimony in the case or enter into a discussion of the same, and we deem it sufficient to state that an examination of the entire record convinces us that the trial Judge was right in granting the motion and in holding, in effect, that under the evidence and the law applicable thereto the insured was not totally and permanently disabled during the life of said insurance contract, within the meaning of the disability clause therein and under the law of this State as declared by this Court.
The second ground urged by the appellant, that appellant's motion for a new trial upon after-discovered evidence should have been granted, must also be overruled for the reasons set forth in the order of his Honor, Judge Greene, who heard the motion and refused the same, which order, omitting formal parts, will be incorporated in the report of the case.
The respondents, upon due notice, asked for the judgment to be affirmed on additional grounds set out in the record, but it is unnecessary to consider the same.
The exceptions are overruled and the judgment of the lower Court affirmed.
MESSRS. JUSTICES STABLER and BONHAM, and MESSRS. ACTING ASSOCIATE JUSTICES, J. HENRY JOHNSON and C.J. RAMAGE, concur.