I regret that I do not agree that the issue presented by this appeal is properly determinable by the Court upon the evidence of the earnings of the insured; if it were, it would be a difficult case and I am not prepared to say that I would dissent from Mr. Justice Baker's decision.
But in my view the appeal presents no such problem; it is only one of law, not of fact; was there evidence from which the jury could reasonably infer, as by their verdict they did, that plaintiff was disabled within the terms of the policies, in the light of the decisions of this Court upon the subject? Careful consideration of the record compels me to favor an affirmative answer to the stated question.
Plaintiff, when insured by defendant had only one hand and that he largely lost the use of it by violent accident while the insurance against disability was, and had for years been, in force, is not disputed; and that this misfortune deprived him of ability to pursue his occupation as State sales manager of a large tobacco manufacturer is not seriously contested. But it is urged that because plaintiff was earning (after years of no earnings) at the time of trial $3,600.00 per year as executive director of the Columbia Community Chest (a well-known public charity), his insurance is in effect suspended. I am sorry that it is doubtful whether this *Page 165 is a proper place to felicitate the insured upon his courage, perseverance and present degree of success. How much easier it would have been for him to have remained a maimed and helpless invalid! His undisputed testimony was that he earned $5,200.00 in his position of private employment during the year of his disabling injury; that he was upon a basis of $4,000.00 annual salary plus a bonus which varied from $400.00 to $2,000.00 and averaged $600.00.
However, I think it clear that comparative earnings are only one circumstance for consideration by the jury in determining the ultimate question of fact, namely, whether the insured is disabled within the meaning of the policy. According to my understanding, this principle was declared and applied in the recent case of Long v. Mutual Life InsuranceCompany, 197 S.C. 492, 15 S.E.2d 761.
The instant case seems to me very like that of Davis v.Metropolitan Life Insurance Company, 164 S.C. 444,162 S.E., 429, in which the insured had been an employee of an express company and his duties required manual strength and ability; he suffered an accident from which he lost the use of an arm and was permitted to recover for permanent and total disability although at the time of the trial he was employed by a college as a night watchman for which he was paid $60.00 per month. The report does not show his former earnings. The opinion of this Court was a well-considered one by Mr. Justice Stabler, afterward Chief Justice, and was without dissent. He reviewed our earlier authorities and quoted freely from the leading texts, which need not now be gone over again. It seems to me that the rule adopted in that decision includes this case and a following of it requires affirmance here.
See also the kindred case of Haynes v. Ware Shoals Mfg.Company, 198 S.C. 75, 15 S.E.2d 846, where the successful claimant for workmen's compensation (award for bodily disfigurement adversely affecting earning capacity) was making as much at the time of the hearing as before *Page 166 the disabling accident. The function of the Industrial Commission with respect to questions of fact has been often aptly likened to that of the trial jury in a law case, such as this. South Carolina and other decisions in 34 West's S.E. and S.C. Digest, Supplement, Workmen's Compensation, Key 1939.
It is unnecessary to here further discuss the foregoing or other similar authorities from the rule of which I think Mr. Justice Baker's opinion departs.
In my view appellant is bound by the verdict of the jury which I think was founded upon competent and relevant testimony which justified their conclusion. There is no complaint of the trial Judge's rulings upon the admission of evidence or of his instructions to the jury concerning the applicable law. Thus, I think the judgment should be affirmed.