Gamble v. Metropolitan Life Ins. Co.

• Decision Date: 12 July 1913
• Citation: 78 S.E. 875,95 S.C. 196
• Parties: GAMBLE v. METROPOLITAN LIFE INS. CO.
• Court: South Carolina Supreme Court

78 S.E. 875

95 S.C. 196

GAMBLE v. METROPOLITAN LIFE INS. CO.

Supreme Court of South Carolina

July 12, 1913

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

Action by James M. Gamble against the Metropolitan Life Insurance Company. From a judgment for plaintiff defendant appeals. Affirmed.

See also, 92 S.C. 45, 75 S.E. 788, 41 L. R. A. (N. S.) 1199.

Elliott & Herbert, of Columbia, for appellant. Dunlap & Dunlap, of Rock Hill, for respondent.

FRASER J.

This is the second appeal in this case. The first is reported in 92 S.C. 451, 75 S.E. 788, 41 L. R. A. (N. S.) 1199. Appellant's argument contains the following:

"This is a suit on a policy of insurance for $500 on the life of Maggie Gamble, wife of the plaintiff, in which policy the plaintiff is named as the beneficiary. The application is dated February 10, 1910, the policy was dated February 10, 1910, and Maggie Gamble died on June 14, 1910."

The answer of the defendant sets up the defense that certain statements made in the application for the policy were untrue; that it was agreed in the application that the answers shall form the basis of the application, and, if they were not correct and wholly true, the policy of insurance shall be null and void; that in said application insured stated she was in sound health, etc., whereas she had been afflicted with disease of the kidneys, had been treated for Bright's disease, and had said questions been truthfully answered the policy would not have been issued, etc.

The fourth paragraph is as follows: "(4) Further answering the said complaint, defendant alleges that said policy of insurance mentioned in the complaint was obtained by fraud, misrepresentation, and deceit, and in consequence of said fraud, misrepresentation, and deceit, the said policy of insurance is null and void."

The case was first tried at the fall term of the court of common pleas in York county before Hon. R. C. Watts, presiding judge, who directed a verdict. On appeal this court reversed the judgment. Gamble v. Metropolitan Life Insurance Co., 92 S.C. 451, 75 S.E. 788, 41 L. R. A. (N. S.) 1199. The case was again tried before Hon. T. S. Sease, presiding judge, at the fall term 1912, and the jury rendered a verdict in behalf of plaintiff for the face of the policy and interest.

Defendant appeals on four exceptions which present two questions. The first three exceptions raise the first point, and the fourth exception raises the second point. These grounds of appeal are: (1) That the presiding judge erred in charging the jury upon the law of waiver by the agent of the defendant company, where there was no such issue made by the pleadings or evidence, and refused, when requested, to charge that there was no evidence of waiver by the agent. (2) That the presiding judge erred in not granting a new trial upon the evidence in the whole case, and because of the wrong charge above."

1. The first ground of appeal cannot be considered. The case does not show that his honor's attention was called to the misstatement of the issues. The case shows the following:

"Mr. Herbert: Your honor, I will ask that you supplement your charge to the extent of instructing that there is no evidence that the agent knew Mrs. Gamble's condition or varied any stipulation in the contract .

"The Court: I am afraid that would be charging on the facts.

"Mr. Herbert: I just asked for it. I don't know whether it would be competent or not.

"The Court: You will write your verdict on this paper, that blue paper. Take the record."

The difference between no evidence and no issue is great. The rule stated in many cases is that, where the presiding judge misstates the issues, the judgment will not be reversed for that reason, unless his attention was called to the misstatement on the issues. One reference is sufficient. Plunkett v. Insurance Co., 80 S.C. 410, 61 S.E. 894. "It will be seen by referring to the case of Nickles v. Ry. Co., 74 S.C. 102, 136, 54 S.E. 255, 266, that 'whatever may be the view elsewhere, our cases support the view that an instruction upon an issue as to which there is...