Fludd v. Equitable Life Assur. Soc'y Of The United States

• Decision Date: 25 October 1906
• Parties: FLUDD . v. EQUITABLE LIFE ASSUR. SOCIETY OF THE UNITED STATES.
• Court: South Carolina Supreme Court

55 S.E. 762

75 S.C. 315

FLUDD .

v.EQUITABLE LIFE ASSUR. SOCIETY OF THE UNITED STATES.

Supreme Court of South Carolina.

Oct. 25, 1906.

1. Jury—Right to Jury Trial—Leg ax and Equitable Issues.

Civ. Code 1902, ! 1826, provides that life insurance companies may institute proceedings to vacate policies procured by fraud in the application. Held that, in an action on a policy where the right to cancel for fraudulent misrepresentations is set up in the answer, defendant is not entitled, because of such statute, to have the issue tried in equity.

2. Appeal—Refusal of Reference.

Refusal of court in an equity suit to grant reference to take evidence is not appealable.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 711-716, 735.]

3. Insurance—Intemperate Habits.

A man is not of intemperate habits within the meaning of an insurance policy because he occasionally uses intoxicating liquors and sometimes to excess.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 28, Insurance, § 676.]

4. Appeal—Review—Exceptions to Charge.

Exceptions containing only extracts from a charge will not be reviewed unless they contain only a single proposition, the mere reading of which would indicate the point on which the opinion of the court is sought.

5. Insurance—Forfeiture of Policy — Estoppel.

Where a company delivers a policy as valid and the agent at the time had knowledge of facts rendering it void at its option, the company is estopped to assert such ground of forfeiture.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 28, Insurance, § 1028.]

Appeal from Common Pleas Circuit Court of Orangeburg County; Aldrich, Judge.

Action by Minnie M. Fludd against the Equitable Life Assurance Society of the United States. Judgment for plaintiff. Defendant appeals. Affirmed.

J. K. P. Bryan, for appellant.

Glaze & Herbert and Raysor & Summers, for respondent.

JONES, J. The plaintiff, as a beneficiary of a policy of insurance issued by defendant company, December 12, 1901, for $2,000, on the life of her husband, John A. Fludd, who died April 11, 1902, brought this action on April 10, 1903, and recovered judgment for the amount of the policy and interest, from which defendant appeals.

1. Appellant's first exception alleges error in the refusal of Judge Aldrich to grant an order referring the equitable defense contained in paragraphs 6, 7, 8, and 9 of the answer to the master to take testimony thereon and report to the court, and the second exception assigns error in refusing to allow the defendant to deposit with the clerk of the court the sum of $108.55 as a continuing tender In this cause subject to the final decree of the court of said equitable issues. The paragraphs of the answer referred to are as follows:

"(5) Further answering, and for a further defense this defendant alleges that, in the written application for the said policy, as set forth in the said complaint, in reply to the question, 'Has applicant ever been intemperate, ' the said J. A. Fludd answered, 'No.' and warranted the said answer to be true, and that such material fact so thereby agreed to be the basis of the said insurance was untrue.

"(6) The defendant, further answering the said complaint, for a further defense, alleges that the said J. A. Fludd induced the said defendants as insurers to make and subscribe the policy attached to the complaint and become insurers as alleged by falsely and fraudulently representing to them that he had not been intemperate; whereas, he had theretofore been repeatedly intemperate.

"(7) The defendant, further answering the said complaint, and for a further defense, alleges that the said J. A. Fludd induced the said defendant, as insurers, to make and subscribe the policy attached to the complaint and become insurers as alleged, by falsely and fraudulently representing to them, in a fact material to the risk, that his practice as regards the use of spirits, wines, malt liquors, or other alcoholic liquors, was 'very moderate;' whereas, his practice in regard to such use was very immoderate, and causing said J. A. Fludd to be turbulent and violent in life, spirit, and manner, and that the said J. A. Fludd was shot, wounded, and killed in a turbulent, violent resistance to the officers of the law, caused in part by the immoderate use of intoxicating liquors.

" (8) Further answering the said complaint, this defendant further alleges that the said J. A. Fludd induced this defendant to subscribe the said policy of insurance by falsely and fraudulently concealing from this defendant material facts concerning his man-ner of life find extrahazardous risk of the same for insurance. In that, in reply to the Question, 'Do you know of any circumstances connected with your manner of life which would render your life extrahazardous for insurance'?' said J. A. Fludd answered, 'No, ' and concealed thereby from this defendant that he had been living a violent, intemperate, turbulent life, and had frequently committed assault and battery, and also assault and battery with intent to kill, and had been convicted therefor, said facts being material to the risks, the said J. A. Fludd being killed in a violent, turbulent resistance to the officers of the law.

" (9) This defendant, further answering the complaint herein, alleges that upon ascertaining the facts set forth in the several defenses aforesaid, and by reason thereof, this defendant elected to rescind said contract of insurance, and on the 2Gth day of July, 1903, duly tendered to said Minnie M. Fludd the sum of $103.90, together with $4.75 legal interest thereon from the 2d day of December, 1901, being the total amount of "the said sum and interest...