Estridge v. Metro. Life Ins. Co

• Decision Date: 11 December 1935
• Docket Number: No. 14101.,14101.
• Citation: 182 S.E. 834
• Parties: ESTRIDGE. v. METROPOLITAN LIFE INS. CO.
• Court: South Carolina Supreme Court

182 S.E. 834

ESTRIDGE.

v.METROPOLITAN LIFE INS. CO.

No. 14101.

Supreme Court of South Carolina.

Dec. 11, 1935.

Appeal from Common Pleas Circuit Court of Chester County; A. L, Gaston, Judge.

Action by Mrs. Florence Estridge against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant appeals.

• Affirmed.

McDonald, Macaulay & McDonald, of Chester, and Elliott, McLain, Wardlaw & Elliott, of Columbia, for appellant.

Hamilton & Gaston, of Chester, for respondent.

STABLER, Chief Justice.

On November 20, 1933, the defendant insured the life of Mrs. Mattie Therrell, the mother of the plaintiff herein, in the sum of $216. Upon the death of Mrs. Therrell, which occurred on or about April 13, 1934, the company refused to pay the insurance, and this action was then brought by the beneficiary to enforce its collection.

The complaint and answer are not incorporated in the record for appeal, but it appears that the former was in the usual form filed in such suit's. On call of the case for trial, May 22, 1935, counsel for the defendant made a motion, which was granted, to strike from the answer the defense of a general denial, stating that they would rely entirely upon their affirmative defense, as they admitted the issuance of the policy, the payment of all premiums, the filing of proofs of the death of the insured and the refusal of the company to pay. In response to the inquiry of the presiding judge whether it was their contention, under the affirmative defense, that the policy was void on account of fraud in procuring the insurance, they made the following statement: "We contend that the insured misrepresented the true state of facts in her application for this insurance; and that there was a breach of the conditions of the policy, which provided that she must be in good health at the time the policy was delivered to her. We further contend * * * although we haven't especially pleaded fraud by name * * * that the facts we allege are sufficient to establish fraud." The trial resulted in a verdict for the plaintiff for $228.96, the face amount of the policy, with interest and costs. From judgment entered, this appeal is taken.

It is contended, in the first place, that Judge Gaston committed error in refusing to grant the defendant's motion for a directed verdict, made upon the grounds (1) that the only inference to be drawn from the testimony was that prior to, and on the dates the application was signed and the policy delivered, the insured was suffering from cancer, a fact known to her; and (2) that the undisputed testimony was to the effect that Mrs. Therrell had been treated by physicians for a serious disease within three years prior to the signing of the application, which facts were denied by her in applying for the policy, and that the insurance was thus secured through misrepresentation.

As to ground (1) of the motion: One of the conditions of the contract of insurance was that if the insured was not alive or in sound health on the date of its delivery, the company could declare the policy void, and in such case would be liable only for the amount of the premiums paid thereon. It is not disputed that the insured in the case at bar was afflicted with cancer at the time the policy was delivered to her; and counsel for the respondent concede that if no question of waiver or estoppel was involved, the appellant would be entitled to a directed verdict, but contend that the evidence required the submission of that issue to the jury.

The plaintiff testified that her mother was visiting at the home of the witness in October, 1933; that Talley, the company's agent called there at that time to collect premiums on insurance which the witness carried in his company; that he asked Mrs. Therrell to let him write a policy on her life, andthat she replied, "I don't believe I could get insurance, because I have been told I have cancer, but I don't think I have"; that she then stated to Talley that she had been advised by Dr. Oren Moore and Dr. Lafferty of Charlotte, N. C, that she had cancer, and that Talley observed that he did not believe she had it, as she looked so well; that about one hour thereafter Talley brought Dr. Harrell, the company's physician, to the house for the purpose of examining the applicant, and that he did examine her, using instruments, counting her pulse, etc.; that Mrs. Ther-rell told the physician that the doctors in Charlotte said she had cancer, and that Dr. Harrell stated that she looked well, and that he did not think she had it. Both Talley and Dr. Harrell denied that Mrs. Therrell informed them that she had been told that she had cancer, as testified to by the plaintiff.

We think the trial judge was unquestionably right in holding that he could not, under the testimony, direct a verdict for the defendant on this ground. There is no evidence that there was any collusion between the agents of the defendant and the insured to defraud the company. If the plaintiff told the truth about what happened at the time the application was made, and the credibility of witnesses, as we have frequently held, is for the jury, then the company was put on notice that certain doctors, whose names and addresses were given at the time, had stated that the applicant, Mrs. Therrell, had cancer; and if it failed to make any investigation of the matter, as it could have done, the jury might reasonably conclude, as it did, that it waived the above-mentioned condition of the policy.

Counsel for appellant argue,...