9016 | S.C. | Mar 1, 1915
March 1, 1915. The opinion of the Court was delivered by This was an action for the recovery of $360 by plaintiff against defendant, alleged to be due plaintiff under a health indemnity policy issued by defendant. The cause was tried at the June term of Court, 1914, for Spartanburg county, before Judge Sease and a jury, and resulted in a verdict for the plaintiff in the sum of $250. After entry of judgment, defendant appeals and bases his exceptions (1) in the refusal to direct a verdict in favor of defendant, (2) errors in his charge, and (3) error in the admission of evidence. It is contended that:
"Under the terms of the policy, in so far as the health feature is concerned, there is no liability until the policy becomes of force, and under the terms of the policy it could not become of force until 12 o'clock noon on the 10th day *133 of November, 1912, and according to the undisputed testimony the plaintiff had contracted the disease from which he suffered prior to that hour, and under the terms of the policy he is not entitled to recover unless the disease is contracted while the policy is of force."
The plaintiff in his proof of loss, which he signed and forwarded, stated that his illness began about 12 o'clock noon, November 10th. In his evidence at the trial he testified:
"Q. In both of these proofs of loss you state that your illness commenced on November 10th? A. That was partial. I was not confined to the house. Q. In the proof that is dated December 24th you state that your illness began at 2 o'clock of November 10th. That was correct, was it? A. Yes, sir; I suppose. * * * Q. Did you feel any of those aching pains and soreness early in the morning of the 10th of November? A. I could not say, but I think we started up there in the morning, and I noticed it at Columbus, and I noticed somewhere about 1 or 2 o'clock. Q. Did you feel any aches or pains that morning? A. Not that I remember of. Q. Did you feel any aches and pains prior to 12 o'clock noon of that day? A. It was at Columbus the first that I remember feeling. Q. What time did you get to Columbus? A. I think it was about half past 1 or 2 o'clock."
Dr. Ezell testified that, if he suffered from the aches and pains on November 10th, he had, in his opinion, contracted it before that time, but on cross-examination said that he had got the cause of the disease in his system, but that he had not the disease, but contracted it and got it in his system. This question was an issuable fact for the jury to determine as to when he had the disease. The seeds of disease might have been in his system and never developed, might have laid dormant for a longtime, and a change of climate or want of care might have developed it. It is for the jury to say, under all of the facts and circumstances, when he *134 contracted the disease. He testified that he felt it at Columbus at 1 o'clock November 10th. I do not understand (and no one holds the medical profession in greater respect than I do) that they think their opinion as to a hypothetical case, or even one that they are treating — that their opinion is infallible and no flaws can be discovered in it, and in a common-sense matter of the question that the jury had to solve on this point their opinion is as good as any expert, and the evidence of Dr. Ezell does not necessarily warrant the conclusion claimed by the appellant.
Exceptions 2, 3, 4 and 5 complain of error in the Judge's charge to the jury and in refusing defendant's request to charge as to waiver. There was sufficient proof to submit this question to the jury. They had the sworn proof of loss, dated December 24, 1912, wherein he claimed that he was sick on November 10th, 2 o'clock p.m., and an acceptance of premium November 18, 1912, and a notification that renewal premium on the policy was due on January 26, 1913, and letter of January 30, 1913, that he would not have to sue company in order to get a settlement as the company pays claims promptly. All of this with proof of loss in their possession after December 24, 1912.
As to the other points made by the exceptions, we think that his Honor's general charge practically covered the grounds complained of, and we see nothing in his charge that could be prejudicial to the defendant; and, as to the fifth exception, it is overruled for the reason we have said that the question of waiver was properly submitted to the jury.
The sixth exception is overruled, as his Honor was clearly right in his ruling and remarks that he made at the time. This exception is clearly taken under a misapprehension of his Honor's ruling.
All exceptions overruled. Judgment affirmed. *135