Before FEATHERSTONE, J., Cherokee, August, 1932. Affirmed.

Action by John Frank Austell against the Volunteer State Life Insurance Company. Judgment for plaintiff, and defendant appeals.

Judge's charge to the jury, directed to be reported, follows:

Mr. Foreman and gentlemen of the jury:

You and I, as thirteen Judges, are here to dispose of this case as the law says it ought to be disposed of. It is our duty to find out what the truth is, under the law and under the evidence. You are the sole judges of the facts in this case, and when I use that word "judges," I use it advisedly, because every man on there is a judge; a judge to find out what the facts in this case are, and make application of the facts to the law. You and I have no interest in this matter whatsoever, except to see to it that a verdict is rendered which is right under the law and under the evidence.

Now, gentlemen, I am going to charge you the law of the case just as briefly as I can; and I say to you that the law enters into and forms a part of your verdict, and you cannot write an intelligent verdict in this case, unless you know what the law is, so follow me very closely.

Now, there are facts admitted in this case; facts about which there is no dispute at all. It is admitted that back yonder in 1913, the Southern States Life Insurance Company wrote this plaintiff here, John Frank Austell, a policy; that it made a contract with him that it insured his life in the sum of a thousand dollars, and at his death that thousand dollars was to be paid to his mother, under the terms of the contract. It is also admitted that the policy said to him, "If you become permanently and totally disabled, according to the language set out there in the contract, we will pay you ten dollars per month for every month that you are permanently and totally disabled, and we won't require you to pay any further premiums on the policy." Now, it is admitted here that this plaintiff filed a claim for permanent and total disability with the Southern States Life Insurance Company, and that they paid it, from the 15th of December, 1926, up to and including September 5th, 1930; the company paid him that claim, ten dollars a month disability; all that is admitted. Now, later on, it is admitted, that the Southern States Life Insurance Company sold out its business and its policies to the Volunteer State Life Insurance Company, this defendant here; the Volunteer State Life Insurance Company bought out the Southern States Life Insurance Company, and assumed its obligations. It is admitted that later on the plaintiff made application for further permanent and total disability, and that the company refused to pay him; the company refused to pay him.

Now, this action is brought here by the plaintiff to recover ten dollars a month for twenty-three months, beginning from October, 1930, and running for twenty-three months thereafter. Now, the company denies liability, as it has a perfect right to do; in so far as this case is concerned, it denies liability. Of course, everybody has a right to come in and have his case tried. And this plaintiff here demands that this Volunteer State Life Insurance Company pay him ten dollars a month for twenty-three months.

Now, the plaintiff, having come into Court and alleged that he was permanently and totally disabled, must show that by the greater weight or preponderance of the evidence. Not necessarily by the greater number of witnesses, because the greater weight or preponderance of the evidence is not determined by the greater number of witness, but by the weight that you, the jury, give the evidence. So that is the one issue here which you are to try — was the plaintiff here, John Frank Austell, permanently and totally disabled, within the meaning of the law, for that period or any part of that period?

Now, naturally, you want to know what that language means, and counsel who just addressed you, has referred to what Judge Gage said, and Judge Gage bottomed what he said upon what St. Paul said, that "The letter of the law killeth, but the spirit maketh alive."

Now, fortunately, our Supreme Court has passed on this question a number of times; the highest Court in the land, and by what they say I am governed and you are governed. That language in the contract there means, not necessarily that a man cannot do any work at all; cannot do any light work; it does not mean that, but it means, according to what our Supreme Court has said — and it means only that — that he must be prevented from performing his work, his usual and ordinary work, in substantially the same way in which he performed, or could have performed, it before he became diseased. Our Supreme Court said in the McCutchen case, 153 S.C. 401, 151 S.E., 67, 71: "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." Now, that is what the Court has said in that case. Now, reading from Davis v. Metropolitan Life Insurance Company, 164 S.C. 444, 162 S.E., 429, 430: "In the Berry case [ 120 S.C. 328, 113 S.E., 141], the Court quoted with approval: `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.'"

Our Court has held that because a man is capable of doing some light work, that does not keep him from recovering; if he can show by the greater weight or preponderance of the evidence that, owing to his disease, that he is incapable of performing his usual and ordinary duties in substantially his customary way, he is entitled to recover, and that is for you gentlemen to settle under the evidence.

Now, that incurable here means permanently and totally disabled, and incurable in so far as can be determined by human testimony and human knowledge.

Now, I charge you request submitted by the plaintiff:

1. "`Total Disability' as contemplated by an insurance policy such as we have here in this case does not mean utter helplessness, but it means that by disease, the injured is rendered unable to do substantially all the material acts necessary to the prosecution of the insured's business or occupation in substantially his customary and usual manner." I charge you that.

(a) "The insured might be able to do some light and inconsequential work out of line with his usual and customary duties and still, this fact, if it should be a fact, would not preclude his recovery for total disability insurance, if his injuries are such that common care and prudence require him to desist from transacting business pertaining to his occupation in order to effect a cure, and if in fact he is physically unable to do his usual and customary work." I charge you that.

Now, that is what that language means, as construed by our Supreme Court, and it is a question for you to say, under all the evidence, whether or not this man has brought himself within the terms of this contract. He is bound by the contract, and the insurance company is bound by the contract.

(With reference to defendant's request.)

Now, I quote here from the contract: "If at any time during the continuance of the policy, after the first premium thereon has been paid, the insured shall furnish due proof to the company, before attaining the age of sixty, including an examination by a physician selected by the company that he has become physically and incurably disabled by bodily injury (not resulting from actual or attempted violation of law on his part, nor self-inflicted) or disease, so that he is and will be thereby permanently, continuously and wholly prevented from engaging not only in his usual occupation, but also in any and every other occupation whatsoever, and from performing work of any kind for compensation of any kind whatsoever, and that such disability has existed continuously for not less than sixty days, the company will thereupon, by endorsement on the policy, waive the payment of each premium that may become payable under the policy during such disability. In making any settlement of the policy the company shall not deduct any part of any premium so waived, and the values provided in the policy under clauses `Loans' and `Surrender Values' shall be the same as if such premiums had been paid in cash as they became due.

"In addition to such waiver, the company will, in such case, pay to the insured a monthly income, equal to ten dollars, for each one thousand dollars of the face amount of the insurance under the policy, the first monthly payment to be made six months after receipt of said due proof of such disability accompanied by the policy for endorsement, and subsequent payments shall be made on the first day of each month thereafter during such disability. Interest due on any indebtedness under the policy may be deducted from such monthly payments."

I charge you that is the language in the contract. "I charge you that is the contract between the parties, and that the language I have just read to you is plain and unambiguous, and means exactly what it says" — I have added here "that is what the law says it means," which I have already given you. — "It is necessary for you to find by the greater weight or preponderance of the testimony that the assured, John Frank Austell, was disabled in the manner and to the degree set forth in the said policy contract," — and I inject here "as construed by the Court" — "that I have read to you, subject to such instructions that I have given you." I charge you that.

So the whole thing comes within a very narrow compass. Does the testimony satisfy you by its greater weight that the plaintiff is entitled to recover, under the instructions I have given you? If it does, you will write your verdict on the back of this paper marked summons and complaint, where I have made a cross mark, "We find for the plaintiff two hundred and thirty dollars," or such sum as you find he is entitled to under the contract for such time as you find he was totally and permanently disabled. If you find that he was totally and permanently disabled twenty-three months, then your verdict will be, "We find for the plaintiff two hundred and thirty dollars," and sign your name as foreman. If you find that he is not entitled to recover anything, say, "We find for the defendant," and sign your name as foreman. You gentlemen will be entitled to any of those papers introduced in evidence as you desire.

Any objection to a sealed verdict?

Mr. Dobson: No, sir.

Mr. Fort: No, sir.

The Court: That means this, gentlemen: when you have agreed on a verdict, put it in this envelope and seal it up and put it in your pocket, and indicate to the bailiff you have agreed and he will let you out, and say nothing of your verdict, and be back in your seats at two-thirty. Anything else, gentlemen?

Mr. Dobson: No, sir.

The Court: Take the record and find a verdict which speaks the truth.