Baker v. Metropolitan Life Ins. Co.

• Decision Date: 10 February 1917
• Docket Number: 9618.
• Parties: BAKER ET AL. v. METROPOLITAN LIFE INS. CO.
• Court: South Carolina Supreme Court

91 S.E. 324

106 S.C. 419

BAKER ET AL. v. METROPOLITAN LIFE INS. CO.

No. 9618.

Supreme Court of South Carolina

February 10, 1917

Appeal from Common Pleas Circuit Court of Chester County; D. D McColl, Judge.

Suit by Mrs. Nannie E. Baker and another against the Metropolitan Life Insurance Company. Judgment for plaintiffs, motion for new trial overruled, and defendant excepts and appeals. Exceptions overruled, and judgment affirmed.

W. E Elliott, Jr., and E. W. Mullins, both of Columbia, and Sam E McFadden, of Chester, for appellant.

Gaston & Hamilton, of Chester, for respondents.

WATTS J.

This is a suit on a policy of insurance on the life of Mrs. Josie Dill, in which policy Nannie E. Baker, the plaintiff in this action, is named as beneficiary. The case was tried before his honor, D. D. McColl, as special judge, and a jury at the November term of the court, 1916, for Chester county. At the conclusion of all the testimony in the case, defendant's attorneys made a motion for a directed verdict in favor of the defendant on the ground that the policy in express terms states that it is void if at the time it executed and delivered the policy the party insured had cancer, and that the evidence in the case leads to the uncontradicted conclusion that at the time of insurance and delivery of the policy insured did have cancer. This motion was overruled by the court, and the case submitted to the jury, who rendered a verdict in favor of the plaintiff in the sum of $105, with interest thereon at the rate of 7 per cent. per annum from April 21, 1913. Thereupon a motion for a new trial was made upon the same grounds that the motion for a directed verdict was made, and upon the further ground that his honor committed error of law in charging the jury and the usual claim that the verdict was contrary to the evidence. This motion being overruled and judgment entered, defendant appeals, and by its exceptions raises three grounds for reversal:

1. That the circuit judge should have directed a verdict for the defendant. We see no error in his honor's submitting the case to the jury. The burden was on the defendant to establish its contention that the insured had cancer before and at the time the policy was issued. The plaintiffs had the policy which was the contract of insurance, and that was prima facie evidence of their right to recover.

There was ample evidence to go to the jury for them to say at the time the policy was issued and delivered whether or not the insured was in good health.

The defendant's physician, who in person saw the insured gave his opinion that she was in good health, and he recommended her as "first class." The deceased stated in her application, which was in writing and put in evidence, that she had suffered only from "la grippe" and had employed no doctor in two years prior to the application except Dr. Cowherd. The agent of the defendant who took the application by his certificate stated that the applicant appeared to be a good risk. The defendant had ample opportunity to investigate and satisfy itself as to the statements made by Mrs. Dill before the policy was issued. If they were...