Owen v. Bankers' Life Ins. Co. Of City Of N.Y.

• Decision Date: 23 November 1909
• Citation: 66 S.E. 290,81 S.C. 253
• Parties: OWEN et al. v. BANKERS' LIFE INS. CO. OF CITY OF NEW YORK.
• Court: South Carolina Supreme Court

(81 S.C. 253)

66 S.E. 290

OWEN et al.

v.BANKERS' LIFE INS. CO. OF CITY OF NEW YORK.

Supreme Court of South Carolina.

Nov. 23, 1909.

1. Insurance (§ 392^*) — Representations-Warranties—Defenses.

Under Civ. Code 1902, §§ 1825, 1826, providing that a life insurance company receiving the premium on a policy for two years shall bedeemed to waive any right to dispute the truth of the application, and authorizing a suit within two years to vacate a policy for falsity of representations in the application, an insurance company receiving the premiums on a policy for more than two years without suing to vacate it, on the ground of false represeutations in the application, may not when sued on the policy prove the falsity of insured's statements in the application, whether such statements were representations or warranties.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1041; Dec. Dig. § 392.*]

2. Insurance (§ 125^2-*) — Contracts — What Law Governs.

Under Civ. Code 1902, §§ 1787, 1790, providing that the taking by a foreign insurance company from any citizen of the state of any premium on any policy shall constitute the doing of business within the state, and that the place of the making and of the performance of the contract shall be deemed to he within the state, and that all foreign corporations doing business in the state will be subject to the laws thereof, etc., a policy issued by a foreign insurance company to a citizen of South Carolina is a South Carolina contract and governed by its laws.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 173-175; Dec. Dig. § 125.*]

3. Insurance (§ 18*)—Foreign Insurance Companies—Right to do Business.

A foreign insurance company has no legal right to do business in the state except on such terms as the state imposes, and, when it comes to do business in the state, it must take notice of the law, and all business done within the state must be conclusively presumed to have been done subject to the laws of the state.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 13, 14; Dec. Dig. § 18.*]

4. Constitutional Law (§ 154*)—Impairing Obligation of Contracts.

Civ. Code 1902, §§ 1787, 1790, providing that the taking or receiving by a foreign insurance company from any citizen of the state of any premium under any policy shall be deemed the doing of busiuess within the state, and that the place of the making and of the performance of the contract shall he deemed to be within the state, and that every foreign corporation carrying on business in the state shall be subject to the laws of the state, etc., construed as providing that a policy issued by a foreign insurance company to a citizen of South Carolina shall be a South Carolina contract, is not invalid as impairing the obligation of contracts.

[Ed. Note.—For other cases, see Constitutional Law, Dec. Dig. § 154.*]

Appeal from Common Pleas Circuit Court of Greenville County; S. W. G. Shipp, Judge.

Action by Annie M. Owen, as administratrix of Paul Owen and Fay Owen, deceased, and another, by guardian ad litem, against the Bankers' Life Insurance Company of the City of New York. From a judgment for plaintiffs, defendant appeals. Affirmed.

Barron, Moore & Barron and Sirrine & Charles, for appellant.

Cothran, Dean & Cothran, for respondents.

HYDRICK, J. This was an action on a life insurance poHcy dated August 24, 1898, and delivered to the insured, E. B. Owen, at Greenville, S. C. The sole defense was that the insured falsely and fraudulently represented in his application for the policy that he was of temperate habits, and never drank wines, spirits, or malt liquors, and that said representations were, by the terms of the application and policy, made warranties, the breach of which avoided the policy. Owen died in July, 1907. When the defendant offered evidence to prove that the representations were false, when made, it was, on objection of plaintiff, excluded. Section 1825, 1 Civ. Code 1902, reads as follows: "All life insurance companies that shall receive the premium on any policy for the space of two years shall be deemed and taken to have waived any right they may have had to dispute the truth of the application for insurance, or that the assured person had made false representations, and the said application and representations shall be deemed and taken to be true." Section 1826 is as follows: "Life insurance companies are hereby authorized to institute proceedings to vacate policies on the ground of the falsity of the representations contained in the application for said policy: Provided, the same be commenced within two years from the date of said policy." These sections were enacted in 1878. 16 St. at Large, p. 530.

In view of these provisions of the statute, the evidence...