Floyd v. New York Life Ins. Co.

• Decision Date: 04 July 1918
• Docket Number: 10014.
• Parties: FLOYD v. NEW YORK LIFE INS. CO.
• Court: South Carolina Supreme Court

96 S.E. 912

110 S.C. 384

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. S 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 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 of his application, statements, representations, agreements, and answers, and of his said amendment." The third averment furnishes the only suggestion that the answer admitted the plaintiff's cause. It is true that therein the defendant admits that the assured received the policies; but the allegation goes further and charges that the reception was qualified by the amended application attached to the policies which worked an avoidance of them. The complaint made no reference to the application, or to the amendment of it. The answer then made not even an indirect admission of the allegation of the complaint, but alleged matter in qualification of the contract the plaintiff set out. This was clearly not such an admission of the plaintiff's case as entitled the defendant to open and close. Kennedy v. Moore, 17 S.C. 464; Boyce v. Lake, 17 S.C. 481, 43 Am. Rep. 618; McConnell v. Kitchens, 20 S.C. 430, 47 Am. Rep. 845.

The offer by the defendant's counsel at the trial to admit the plaintiff's cause came too late; the admission must be by the record. Johnson v. Wideman, Dudley, 325.

The court was not bound to direct the jury to find a special verdict upon any or all of the issues. The statute directs that the court may make such direction Section 321, Code. In the cases relied upon by the appellant the court had so directed, and we only held that the jury was bound to follow the direction. Fertilizer Co. v. Railway, 99 S.C. 197, 83 S.E. 36. More than this, the instant action is for the recovery of money only; and in such a case the rendition of a special verdict is in the discretion of the jury. Code, § 321.

The witness Quinby was on the stand for the defendant to prove the circumstances of the release by the insured, set up in the fourth paragraph of the answer. On the cross-examination this occurred:

"Q. If a verdict should be rendered for Mrs. Floyd, do you think it would be a reflection on you? A. No, sir.

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