Opinion of the Court.

[ 106 S. C. insistence of the defendant is that the plaintiff's own testimony, instead of proving total disability, negatives that conclusion. So the case depends upon what the plaintiff has said and the operation of his contract thereupon. If there may be two reasonable opinions about the result of this process of deduction, then the Court was right to leave the inference to the jury. That rule, like rules of law generally, is plain enough; the rub comes in its application to the facts. We are satisfied that the Court was right to submit the issue to a jury. The setting of the case is this: The plaintiff is a man of 60 years; he is a three-horse farmer; he never learned to read and he only learned to write his name, and he cannot do that now; he was suddenly stricken down during January while doing manual labor, was carried to a hospital at Florence, and began to mend only in September following; he has never since the attack been able to do farm work; since the first attack he has been sick "all the time most." On cross-examination the plaintiff testified that when his wagon was loaded he drove it out to his farm; that he sometimes rode in a buggy with a boy who delivered milk for him; that he looked after the feeding of the cows; that he ran a dairy business with four cows with the help of a 14-year-old boy; that he made arrangements for farm purchases, etc. It is this testimony upon which the defense relies to negative total disability.

1

The policy itself is evidence that the words of the disability clause are not to be literally construed. That instrument suggests several instances of what are deemed total disablements, to wit:

"Permanent loss of the sight of both eyes, or the loss of both hands at or above the wrist or the loss of both feet at or above the ankle, or the loss of one hand at or above the wrist and one foot at or above the ankle, or being permanently totally paralyzed, are some of the causes which will be admitted by the company as a total disablement under this clause."

An illiterate three-horse farmer, dependent in large measure on his own strong arm for a livelihood, accustomed and trained only to bodily labor, made by disease suddenly

and generally unfit for bodily labor, comes within 2 the meaning of the contract; 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 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 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.

We think the Circuit Judge compassed the whole case when he ruled on the motion for a directed verdict. said:

He

"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.”

The judgment of the Circuit Court is affirmed.

MR. CHIEF JUSTICE GARY did not participate in the consideration of this case.

Argument of Counsel.

9604

GLOVER v. HEYWARD.

(91 S. E. 316.)

[ 106 S. C.

APPEAL AND ERROR-ORDERS APPEALABLE-DISCRETION OF TRIAL COURTSTATUTE.-Under Code Civ. Proc. 1902, sec. 368, providing that if defendant fails to appear before the magistrate, and if it is shown by the affidavits served by appellant, or otherwise, that manifest injustice has been done, and he satisfactorily excuses his default, the Court may, in its discretion, set aside or suspend a default judgment, and order a new trial, the revocation of an order staying proceedings on such judgment, in the absence of any showing of an abuse of the trial Court's discretion, is not appealable.

Before SMITH, J., Columbia, May, 1916. Appeal dismissed.

Proceeding by W. H. Glover against B. R. Heyward to foreclose a mechanic's lien. From an order of the Circuit Court, on defendant's appeal from a default judgment in a magistrate's Court, dismissing the appeal and revoking the order staying the proceedings, defendant appeals.

Messrs Johnstone & McLain, for appellant, cite: Code Civ. Proc., secs. 405, 225; Civil Code, secs. 4120, 4121, 4122, 4126; 20 S. C. 500; 22 S. C. 534; 43 S. C. 173.

Mr. Barnard B. Evans, for respondent, submits: Order is not appealable: 76 S. C. 193 ; 79 S. C. 265; 70 S. C. 178, 216; 74 S. C. 366; 79 S. C. 198; 56 S. C. 28; 52 S. C. 305; 56 S. C. 28; 56 S. C. 12, 28. Notice of appeal defective: 10 Mod. Am. Law 101; Code Civ. Proc., sec. 206; Rules Circuit Court, 12, 13. No proper proof of service: Code Civ. Proc., sec. 183; 13 S. C. 198; 19 S. C. 602. Effect of omission: 30 S. C. 607; 77 S. C. 155. Question not passed on below: 51 S. C. 366; 54 S. C. 223; 60 S. C. 392; 63 S. C. 123. Hearing on return: Code Civ. Proc., sec. 405.

February 10, 1917.

The opinion of the Court was delivered by MR. JUSTICE FRASER.

This was a proceeding in a magistrate's Court, to foreclose a mechanic's lien. Judgment was given against appellant by default. From this judgment appellant appealed to the Circuit Court. The case was heard by his Honor, Judge Mendel L. Smith, who made the following order:

"This case was heard by me on the return to show cause directed to the plaintiff why a former order issued by me should not be set aside and the case heard on the merits. I ordered the case docketed by the clerk, and, after hearing the return of the plaintiff, heard the matter on the merits. It is ordered that the appeal is hereby dismissed, and that the order staying the proceedings, dated May 17, 1916, is hereby revoked and of no effect."

From this order this appeal is taken. The respondent raises the point that the order of Judge Smith is not appealable. The point is well taken, and is sustained under Carey v. Tolbert, 79 S. C. 264, 60 S. E. 674, where it is said:

"The respondent's attorney raises the preliminary question whether the order is appealable. Section 368 of the Code provides: 'If the defendant failed to appear before the magistrate, and it is shown by the affidavits served by the appellant, or otherwise, that manifest injustice has been done, and he satisfactorily excuses his default, the Court may, in its discretion, set aside or suspend judgment and order a new trial.' The order of his Honor, the Circuit Judge, in refusing the defendant's motion was discretionary, and, as the appellant has failed to satisfy this Court that his discretion was abused, the order is not appealable.

"It is the judgment of this Court that the judgment of the Circuit Court be affirmed."

No abuse of discretion is shown here. The appeal is dismissed.

MERCHANTS & PLANTERS BANK v. BRIGMAN ET AL.

1. CHATTEL MORTGAGES

(91 S. E. 332.)

OVERDUE MORTGAGE-TITLE AND POSSESSION.Ordinarily when a chattel mortgage is past due, and there is anything due thereon, the title vests in the mortgagee, who is entitled to the possession of the property.

2. CONSTITUTIONAL LAW-HIGHWAYS-DUE PROCESS OF LAW-LIEN ON AUTOMOBILES FOR INJURIES CAUSED BY-ATTACHMENT.-Act 1915 (27 St. at Large, p. 737), sec. 1, providing that when a motor vehicle is operated in violation of the law or negligently or carelessly, and when anyone receives personal injuries thereby, or when any property is damaged thereby, such damages shall be a lien on such motor vehicle, next in priority to the lien for State and county taxes, recoverable in any Court of competent jurisdiction, with the right to attach such vehicle as provided by law for attachment, does not violate the due process of law provisions of Const., art. I, sec. 5, and U. S. Const. Amend., 14.

3. HIGHWAYS-POLICE POWER-MOTOR VEHICLE-LIEN AND ATTACHMENT.—Such act is a valid exercise of the legislature's police power. 4. CONSTITUTIONAL LAW-POWER OF COURT-WISDOM OF STATUTE.—AS long as the legislature acts in relation to the police power vested in it, it is not for the Court to say whether the act is wise or unwise. 5. CHATTEL MORTGAGES-PUBLIC NOTICE.-Act 1915 (27 St. at Large, p. 787), sec. 1, being a public act, puts the whole world on notice that the claim of one who sustains personal injury or property damages from the illegal or negligent operation of a motor vehicle, is superior to that of any other person, except the State and county, and a mortgagee takes with notice of the act.

AUTOMOBILE ·

6. ATTACHMENT STATUTE. — Under such statute the machine can be attached and made liable to the lien, where it is loaned, and the party operating it inflicts the injury.

7. STATUTES SUBJECT AND TITLE.-Act 1915 (27 St. at Large, p. 737), sec. 1, entitled “An act to further regulate the running of motor vehicles in this State," and, by sec. 1, providing that, where a motor vehicle is operated in violation of the law, or negligently, and when any person receives personal injury thereby, or any property is damaged thereby, the damages shall be a lien upon the vehicle, with the right of attachment, relates to and is germane to the title, and hence does not violate Const., art. III, sec. 17, providing that each act shall relate to but one subject expressed in its title.

Before MAULDIN, J., Dillon, February, 1916. Reversed.