Floyd v. N.Y. Life Ins. Co, (No. 10014.)

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtGAGE
Citation96 S.E. 912
PartiesFLOYD. v. NEW YORK LIFE INS. CO.
Docket Number(No. 10014.)
Decision Date04 July 1918

96 S.E. 912

FLOYD.
v.
NEW YORK LIFE INS. CO.

(No. 10014.)

Supreme Court of South Carolina.

July 4, 1918.


Appeal from Common pleas, Circuit Court of Aiken County; T. & Sease, Judge.

Action by Harriett L. Floyd against the New York Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The second paragraph of the answer was as follows:

That the defendant on, to wit, the 2d day of December, 1912, duly received said application

[96 S.E. 913]

and said statements, representations, agreements, and answers, and the report of the physician who examined him, at its home office, which is in the city of New York, where it considered said application, and upon consideration thereof said defendant there and then believed said statements, representations, declarations, and answers to be full, complete, and true, and relied and acted, and had a right to rely and act, thereon, and upon the faith of the truth thereof there and then accepted said application, and on, to wit, the 13th day of December, 1912, duly forwarded from its said home office said policies as applied for for delivery, subject to an amendment to said applicant's said application to be signed by him, requesting as such amendment that the policies take effect as of the 7th day of November, 1912, instead of as of the date of said application, and thereupon said applicant duly signed said amendment and received said policies, which there and then had attached thereto a copy of his said application, statements, representations, agreements, and answers and of his said amendment.

James H. Mcintosh, of New York City, and Thomas & Lumpkin, of Columbia, for appellant.

Hendersons and John F. Williams, all of Aiken, for respondent.

GAGE, J. Action upon two contracts of insurance on the life of Sherman Floyd. The plaintiff is wife of the deceased and beneficiary under the policies. After one mistrial the jury at a subsequent trial found for the plaintiff, and the insurance company has appealed.

These are the major circumstances which make the controversy: The policies of insurance are dated October 31, 1912; the insured died September 6, 1913, and admittedly of diabetes; on November 22, 1913, the company, esteeming that the policies voidable by reason of an untrue statement made by Floyd in his application for Insurance, tendered to the beneficiary the premiums which had been paid, and took from her a release from further liability; the plaintiff in return has attacked this release as having been secured by the defendant's fraud. The two major issues in the circuit court and here were and are: (1) Was Floyd's answer made in the application for the policy so untrue as to avoid that instrument? And (2) was the release executed by the plaintiff secured from her under circumstances which avoided it? Allied to these two questions are two others, one to the charge and another to a refusal to charge. These major issues are reserved for a later discussion.

There are other minor issues which clog the way, and they will be now first disposed of. Of such there are three: (1) That the defendant had the right to open and close the case; (2) that the defendant was entitled to have a special verdict; and (3) that a certain answer of a witness, Quinby, was incompetent.

The rule of court provides that the defendant shall begin and close "where he admits the plaintiff's cause by the pleadings, and takes upon himself the burden of proof." The answer nowhere expressly admits the plaintiff's cause. It neither admits, nor does it deny, the allegations of the complaint. It proceeds immediately "answering both causes of action * * * and as a defense" to set forth new matter constituting a defense to the plaintiff's case. The answer is made up of four paragraphs. The first refers only to the written application for insurance, and the contents of it. The third is a denial of the truth of the statements made in the written application for insurance, and the allegation that when the assured made the application he had diabetes, tuberculosis, and other ailments; and so much is pleaded to avoid the policy. The fourth refers only to the before-stated agreement of the beneficiary to release the company from liability on the policy. The second paragraph is the only one which makes any remote admission of the plaintiff's case. Let it be reported. That paragraph is made up of three averments, to wit: (1) That the application for insurance was received by the defendants in New York on December 2, 1912, and upon its examination by the defendant it was accepted as true; (2) that the application was amended by the insured by a written request that the policies should take effect as of date of November 7, 1912, instead as of the date of the application; and (3) that thereupon the applicant and insured "received the said policies which there and then had attached thereto a copy...

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7 practice notes
  • Key v. Carolina & N. W. Ry. Co, No. 13112.
    • United States
    • United States State Supreme Court of South Carolina
    • 9 Abril 1931
    ...of the trial judge to decide whether or not he should submit special issues of fact to the jury. Floyd v. Insurance Co., 110 S. C. 384, 96 S. E. 912. This proposition must be decided, therefore, against the appellant. The exceptions grouped as propositions, [162 S.E. 583] 2, 3, 4, 5, and 6,......
  • Livingston v. Union Cent. Life Ins. Co. Of Cincinnati, (No. 10727.)
    • United States
    • United States State Supreme Court of South Carolina
    • 20 Mayo 1922
    ...v. Insurance Co., 107 S. C. 21, 91 S. E. 1043; Wingo v. Insurance Co., 112 S. C. 139, 99 S. E. 436; Floyd v. Insurance Co., 110 S. C. 384, 96 S. E. 912; Johnson v. Insurance Co., 111 S. C. 399, 98 S. E. 140; McLaurin v. Ins. Co., 115 S. C. 59, 104 S. E. 327; Livingston v. Ins. Co., 115 S. C......
  • Reiland v. SOUTHLAND EQUIPMENT SERVICE, No. 2828.
    • United States
    • Court of Appeals of South Carolina
    • 20 Abril 1998
    ...that the evidence is not admissible to prove negligence in the condition or appliances existing at the time of the accident. Id. at 568, 96 S.E. at 912; see Green v. Atlantic Coast Line R.R. Co., 136 S.C. 337, 134 S.E. 385 (1926) (holding that where brakeman was injured when knocked off top......
  • Eaves v. Progressive Fire Ins. Co., No. 16388
    • United States
    • United States State Supreme Court of South Carolina
    • 27 Julio 1950
    ...in such cases the rendition of a special verdict is within the discretion of the jury, Floyd v. New York Life Insurance Co., 110 S.C. 384, 96 S.E. 912. For the foregoing reasons, we are of the opinion that all exceptions should be dismissed and the judgment of the Trial Court affirmed, and ......
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7 cases
  • Key v. Carolina & N. W. Ry. Co, No. 13112.
    • United States
    • United States State Supreme Court of South Carolina
    • 9 Abril 1931
    ...of the trial judge to decide whether or not he should submit special issues of fact to the jury. Floyd v. Insurance Co., 110 S. C. 384, 96 S. E. 912. This proposition must be decided, therefore, against the appellant. The exceptions grouped as propositions, [162 S.E. 583] 2, 3, 4, 5, and 6,......
  • Livingston v. Union Cent. Life Ins. Co. Of Cincinnati, (No. 10727.)
    • United States
    • United States State Supreme Court of South Carolina
    • 20 Mayo 1922
    ...v. Insurance Co., 107 S. C. 21, 91 S. E. 1043; Wingo v. Insurance Co., 112 S. C. 139, 99 S. E. 436; Floyd v. Insurance Co., 110 S. C. 384, 96 S. E. 912; Johnson v. Insurance Co., 111 S. C. 399, 98 S. E. 140; McLaurin v. Ins. Co., 115 S. C. 59, 104 S. E. 327; Livingston v. Ins. Co., 115 S. C......
  • Reiland v. SOUTHLAND EQUIPMENT SERVICE, No. 2828.
    • United States
    • Court of Appeals of South Carolina
    • 20 Abril 1998
    ...that the evidence is not admissible to prove negligence in the condition or appliances existing at the time of the accident. Id. at 568, 96 S.E. at 912; see Green v. Atlantic Coast Line R.R. Co., 136 S.C. 337, 134 S.E. 385 (1926) (holding that where brakeman was injured when knocked off top......
  • Eaves v. Progressive Fire Ins. Co., No. 16388
    • United States
    • United States State Supreme Court of South Carolina
    • 27 Julio 1950
    ...in such cases the rendition of a special verdict is within the discretion of the jury, Floyd v. New York Life Insurance Co., 110 S.C. 384, 96 S.E. 912. For the foregoing reasons, we are of the opinion that all exceptions should be dismissed and the judgment of the Trial Court affirmed, and ......
  • Request a trial to view additional results

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