O'barr v. Pioneer Life Ins. Co

• Decision Date: 14 February 1934
• Docket Number: No. 13777.,13777.
• Citation: 172 S.E. 769
• Court: South Carolina Supreme Court
• Parties: O'BARR. v. PIONEER LIFE INS. CO.

172 S.E. 769

O'BARR.

v.PIONEER LIFE INS. CO.

No. 13777.

Supreme Court of South Carolina.

Feb. 14, 1934.

Appeal from Common Pleas Circuit Court of Anderson County; C. J. Ramage, Judge.

Action by Walter E. O'Barr against the Pioneer Life insurance Company. Verdict in favor of plaintiff. Defendant's motion for a new trial was granted, and plaintiff appeals.

Appeal dismissed.

Leon W. Harris, of Anderson, for appellant.

Watkins& Prince, of Anderson, and Mann & Plyler, of Greenville, for respondent.

W. C. COTHRAN, Acting Associate Justice.

This action was brought in the court of common pleas for Anderson county on March 3, 1932, and by it the plaintiff sought a recovery from the defendant of the sum of $1,000, as disability, under a policy of insurance. The answer of the defendant set forth that certain statements of the plaintiff in his application for insurance were incorrect and erroneous and that by reason thereof the defendant was misled into issuing the policy. It further denied liability and urged that the contract for insurance be canceled.

Testimony was adduced for both plaintiff and defendant, and at the close of the testimony the defendant made a motion for a directed verdict. The motion was made upon the following ground: "On the ground that the undisputed evidence shows, and all of the evidence is susceptible of but one reasonable conclusion, that the plaintiff made misstatements constituting representations in his application for insurance which were material and which plaintiff knew or reasonably believed would influence the insurer in entering into the contract of insurance and by reason of such representations as to his then and previous health and as to his being attended by doctors for serious physical ailments, rendered the policy void from its inception."

in passing upon the motion, Judge Ramage said:

"Mr. Mann, my mind inclines to agree with you, but I am going to take the verdict of the jury and reserve the right, if I am still of the same opinion when the verdict is rendered, to set aside the verdict and direct a verdict for you. I will take the verdict of the jury, however, I am inclined to agree with you right now, but I had rather take the verdict of the jury.

"Now it is understood, Mr. Harris, I am going to let it go to the jury, with the right, if I conclude if it's necessary, that I can set aside the verdict of the jury and direct a verdict at that time."

We look to the "statement" appearing in the transcript for further...