Ellison v. Independent Life & Acc. Ins. Co.
| Decision Date | 13 April 1950 |
| Docket Number | 16341. |
| Parties | ELLISON v. INDEPENDENT LIFE & ACCIDENT INS. CO. |
| Court | South Carolina Supreme Court |
Mann & Arnold, Greenville, for appellant.
Oscar H. Doyle, Anderson, for respondent.
Plaintiff operates a retail store in Belton. Roy Gregory, now deceased, was mayor and occupied the city hall which was next-door to plaintiff's store. For many years Gregory had been an insurance agent and was the general agent in Belton for Life Insurance Company of Virginia. Although only forty-eight years old he suffered a heart attack several years before the transaction under review and was retired from his former employment. He continued to serve as mayor.
He was in plaintiff's store on Oct. 4, 1948 in social conversation with plaintiff and with defendant's agent, Hammond. There were also present plaintiff's clerk, one Watkins, and Lawrence Ellison, of the same surname but no relation, who was agent at Belton for another life insurance company. The subject of insurance was broached and the testimony thereabout of defendant's agent Hammond will be first summarized. He entered the store he said to purchase a soft drink and found plaintiff talking to Ellison who Hammond understood was trying to sell plaintiff a policy. Gregory asked Hammond if he could write a policy for him whereupon Hammond inquired his age, quoted the weekly premium and filled an application. Upon inquiry as to beneficiary, Gregory first mentioned his wife and plaintiff interjected that he should be the beneficiary, to which Gregory agreed and the application was so written. Under instruction from plaintiff his clerk Watkins, took cash from the money-drawer of the store and paid Hammond the amount of the first premium, $16.92, which it turned out was a few cents too much in view of the applicable discount for advance payment of the weekly premiums. Hammond testified further that he asked Gregory the condition of his health and the reply was, 'I am in as good health as the average man of forty-eight.' The insured inquired whether the premium would be refunded to plaintiff if policy were not issued, and he was so assured by the witness. He procured the issuance of the policy from defendant's Anderson office and delivered it to plaintiff or his clerk, Watkins, for him. After the death of the insured the witness, accompanied by another agent of defendant, tendered refund of the amount of the premium to plaintiff who declined it. The policy did not require a medical examination. The witness had obtained his municipal license as an agent from the insured on the preceding May 3rd but did not know that he was a retired insurance agent and he afterward saw him only infrequently and did not know that he was drawing disability and did not hear him say that at the time of the application. The insured asked the witness to write the insurance and no questions were asked for the purpose of filling the application except whether the insured was in good health to which he replied as stated above.
Lawrence Ellison testified that when he entered the store upon this occasion plaintiff and his clerk were present, as were the insured and Hammond, all of whom were talking insurance. The insured inquired of the witness where he could write him a policy and the witness replied in the negative. Hammond interposed with quotation of the premium rate of his company the defendant, and the insured said to him, 'Son, do you know I am drawing disability?' Hammond said, The witness is a lifelong resident of Belton, knew the insured as mayor and knew that he was not in sound health and he heard the insured tell Hammond that he, the insured, was 'drawing disability.'
Plaintiff's clerk, Watkins, testified that the insured first came in the store, sat down and talked with the witness and his employer plaintiff, and when one of the insurance agents came in they talked about insurance and the insured asked agent Ellison the amount of premium per thousand and agent Ellison replied, 'There is no use of my telling you, I can't write you.' Then agent Hammond said, upon inquiry by the insured, that he could furnish a thousand-dollar policy. The witness thought that the insured mentioned disability to the agent Hammond. The witness paid the premium and charged the amount, $17.40 (sic), to the account of the insured who was also charged on the same day with groceries.
Plaintiff testified that he had known the insured for six or seven years and they were good friends and hunted and fished together. He extended credit to the insured who settled irregularly in cash. The insured was visiting him in his store on Oct. 4, 1948 for probably thirty minutes when agents Hammond and Ellison came in whereupon plaintiff suggested to them that they might do some business by writing each other a policy. The insured said, 'Write me a policy.' Agent Ellison replied, 'I can't write you one,' but Hammond said, 'I can write you a policy,' to which the insured replied, 'Give me all you can give me,' and Hammond Began to fill a blank whereupon the insured said, Hammond said, The insured signed application and requested plaintiff to pay the premium which the clerk did upon his instruction and the amount was charged to the insured on plaintiff's books. Plaintiff did not know before that the insured was 'drawing a pension' and did not know that he was not in good health. The witness heard the insured tell Hammond on this occasion that he was drawing disability which was the first information the witness had of it.
Medical witnesses for the defendant testified that the insured suffered from a serious heart ailment in September 1945 when he was District Manager in Belton for the Life Insurance Company of Virginia. He improved but was never cured and also suffered from hardening of the arteries and disease of the gall bladder, from all of which he was not, in their opinions, an insurable risk. The local doctor who was called at the time of the insured's death (after a fall in the bathroom) was of opinion that death resulted from cerebral hemorrhage which was unconnected with heart trouble. He also testified to the good reputation of plaintiff and the insured for honesty and integrity.
The application which was filled by defendant's soliciting agent, Hammond, answered 'yes' to the question whether the applicant was then in good health and 'no' to the questions whether he had been sick in the past year, whether he had consulted a physician in ten years and whether he had ever suffered from various diseases, including gall bladder and...
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