Fender v. New York Life Ins. Co.

• Decision Date: 13 August 1930
• Docket Number: 12958.
• Citation: 155 S.E. 577,158 S.C. 331
• Parties: FENDER v. NEW YORK LIFE INS. CO.
• Court: South Carolina Supreme Court

155 S.E. 577

158 S.C. 331

FENDER v. NEW YORK LIFE INS. CO.

No. 12958.

Supreme Court of South Carolina

August 13, 1930

Appeal from Common Pleas Circuit Court of Beaufort County; T. S Sease, Judge.

Action by Vernie L. Fender against the New York Life Insurance Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Thomas & Lumpkin, of Columbia, and J. Heyward Jenkins, of Beaufort for appellant.

C. J Colcock, of Bluffton, Claude M. Aman, of Beaufort, and Alfred Wallace, Jr., of Columbia, for respondent.

BLEASE J.

This action was brought by the respondent to recover the sum of $1,500 and interest thereon, alleged to be due to her as the named beneficiary of a life insurance policy, issued and delivered by the appellant on the life of Arthur E. Fender, the insured, who was the husband of the respondent.

The appellant admitted the issuance and delivery of the policy to Fender and the death of the insured. It defended the action because, as it alleged, the insured had violated certain conditions precedent of the policy, set forth in the application upon which the same was issued and delivered, and on the ground that there was fraud on the part of the insured in obtaining the insurance. The alleged facts, upon which the defenses of the appellant were based, are referred to and discussed hereinafter.

The respondent sought to answer the defenses of the appellant upon the theory that there had been a waiver of the grounds of forfeiture on the part of the appellant. Perhaps the position of the respondent was more in the nature of an estoppel than one of waiver; but both the parties have regarded the issue, raised by the respondent, as one of waiver, and we shall follow them in that respect.

While there are distinguishing features between "waiver" and "estoppel," waiver belongs to the family of estoppel, and the terms are frequently used as meaning the same thing in the law of insurance contracts. 40 Cyc. 255.

The trial of the case in the court of common pleas of Beaufort county, before Honorable T. S. Sease, Presiding Judge, and a jury, resulted in a verdict in favor of the respondent for the full sum demanded by her in her complaint, less the amount due on a promissory note of the insured, which the appellant accepted, in payment of the first premium on the policy.

Thirty-two jurors were in attendance upon the court. In impaneling the jury for the trial of the case, the circuit judge held that seven of these were not qualified to serve, six for the reason that they were policyholders of the insurance company, and the seventh because he was a "corresponding agent" of the appellant. By its first exception, appellant contends that this action on the part of the court was erroneous, and that it resulted in prejudice to its cause. It appears in the record that the policyholders of the appellant are entitled to certain dividends on their policies, and the amounts of these depend upon the profits and losses incurred by the appellant in the conduct of its business. The duties of the "corresponding agent" of the appellant do not seem to appear in the record, but we assume that he was an employee of the insurance company.

In State v. Sharpe, 138 S.C. 58, 135 S.E. 635, 637, we said: "Our circuit judges should be very careful to keep off juries persons who are related to the parties, or who, in any manner, have an interest in the result of the cause." We are now of that same opinion.

Perhaps all the jurors, who were held to be disqualified by the circuit judge, would have rendered a fair and impartial verdict. It is not necessary now to decide that any of them, especially the policyholders, were not qualified to sit in the case. It is well recognized in this state that questions relating to the fitness of jurors to serve in cases are very much within the discretion of the trial judge. This court consistently refuses to reverse a case because of the judge's rulings in matters thereabout, unless it plainly appears that there was an abuse of the discretion allowed to the judge, and that such abuse of discretion may have resulted in harm to the losing party. Following our many precedents, too numerous to cite, we must conclude that there was no prejudicial error to the appellant, as alleged by it in its first exception.

The second exception imputes error to the presiding judge because he refused to direct a verdict in favor of the appellant. The ground upon which it is contended this motion should have been granted is as follows: That the application for the insurance, upon which the policy was issued, contained as a part thereof this agreement on the part of Fender, the insured:

"That the insurance hereby applied for shall not take effect unless and until the policy is delivered to and received by the applicant and the first premium thereon paid in full during his life time, and then only if the applicant has not consulted or been treated by any physician since his medical examination."

The appellant asserts that the uncontradicted testimony showed that Fender, the insured, in violation of the condition precedent, above mentioned, consulted and was treated by a physician after his medical examination without the consent or knowledge of the appellant, and thereby the contract of insurance was voided and did not become effective, although issued and delivered to the insured.

This exception brings us to a review of the facts, as adduced in the trial, both from the standpoint of the appellant and the respondent.

On March 22, 1929, Fender, who lived in Hardeeville, applied to J. K. Beach, appellant's soliciting agent, for a policy of $1,000 on his life, naming his wife, the respondent, as the beneficiary. Fender was examined on April 9, 1929, by Dr. E. C. B. Mole, the company's medical examiner. Following that application and medical examination, the policy applied for was issued and delivered to the insured on or about April 19, 1929. At the time of the delivery of that policy (which we may call the first policy), Fender requested additional insurance in the sum of $1,500. That policy (called the second policy, and one which is involved in this suit) was written on April 24, 1929, and forwarded through the Savannah office of the appellant to Beach. On April 27, 1929, Beach called at Fender's home to deliver the second policy, but he found Fender was not feeling well and declined to deliver the policy at that time. A few days later, Fender wrote Beach that he was well. In the afternoon of May 14, 1929, Beach called again at Fender's home and delivered the second policy. Within a few hours, in fact, perhaps within little more than one hour, Fender suddenly died. The appellant paid the first policy, but declined to make payment of the second.

As a part of the application and the report of the medical examination, the insured made the following certificate:

"On behalf of myself and of every person who shall have or claim any interest in any insurance made hereunder, I declare that I have carefully read each and all of the above answers, that they are each written as made by me, and that each of them is full, complete and true, and agree that the Company believing them to be true shall rely and act upon them."

At the time of his request for the issuance of the second policy, Fender signed a "supplemental application" to the appellant for the issuance of the additional insurance, in the following form:

"Supplemental to my application for insurance dated the 22nd day of March, 1929, I hereby apply for $1,500 additional insurance on the ordinary life plan, to take effect as of April 16, 1929, and I reiterate and confirm all the agreements, statements, representations and answers contained in my said original application and agree that said original application shall form a part of said additional insurance contract. I further warrant and declare that no change has occurred in my health or insurability since the date of my said original application."

The appellant alleged, and the proof shows, that on the 2d or 3d day of May, 1929, subsequent to the date on which Fender made his supplemental application for insurance, and a few days prior to the date of the delivery of the policy sued on, Fender visited and consulted Dr. Charles Usher of Savannah, Ga., on account of illness, and that the physician at that time diagnosed Fender's illness as influenza; that he advised Fender of that fact and prescribed for his illness.

The appellant claimed, and sought to establish, that it had no knowledge or information as to the visit of Fender to Dr. Usher, and the treatment of the insured by the physician. And it contended that the failure of the insured to disclose these facts was in violation of his agreement with the company, and "that the policy was issued and delivered through false and fraudulent representations."

The respondent endeavored to establish by testimony her theory that Beach, the agent, did have knowledge of the visit to, and treatment by, Dr. Usher, at the time of the delivery of the policy, and on account of the conduct and actions of the agent, when fully advised of the facts, the appellant had waived, or was estopped to assert, any forfeiture.

The visit of the insured to Dr. Usher and the treatment he received were conclusively established. Dr. Usher so testified. Mrs. Fender, the respondent, was with her husband at the time, and her testimony frankly agreed with that of the physician.

The conflict in the testimony relates to the information imparted to the agent, Mr. Beach. He testified that about 3:45 p. m on May 14, 1929, he visited Fender's home for the purpose of delivering the policy; that Fender, a section foreman of a railroad company, was not at home at the time, but came...