Johnson v. Metropolitan Life Ins. Co.

• Decision Date: 28 January 1919
• Docket Number: 10140.
• Citation: 98 S.E. 140,111 S.C. 398
• Parties: JOHNSON v. METROPOLITAN LIFE INS. CO.
• Court: South Carolina Supreme Court

98 S.E. 140

111 S.C. 398

JOHNSON v. METROPOLITAN LIFE INS. CO.

No. 10140.

Supreme Court of South Carolina

January 28, 1919

Appeal from Common Pleas Circuit Court of Richland County; R. W Memminger, Judge.

Action by Edward Johnson, as administrator of Nellie T. Johnson deceased, against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Hydrick J., dissenting.

Wm Elliott and James H. Fowles, both of Columbia, for appellant.

Richard E. Carwile and James S. Verner, both of Columbia, for respondent.

WATTS J.

This is an action for the recovery of $500 under a policy of insurance on the life of Nellie T. Johnson. The case was tried before Judge Memminger and a jury, and resulted in a verdict in favor of plaintiff for $500. At close of plaintiff's evidence the defendant made a motion for nonsuit, which was refused. When all the testimony was in, the defendant made a motion for a directed verdict in its favor, which was refused. After verdict a motion for new trial was made and refused. After entry of judgment defendant appeals, and imputes error to his honor in overruling defendant's motion for a directed verdict; both of these motions being on the ground that "the undisputed evidence was that the insured procured the policy because she represented to the insurer that she and her husband were free from tuberculosis, and knew these representations were false," and further "that she had not been under the care of a physician for more than two years, and she knew these representations were false" and in his honor's charge "he left it to the jury as a question of fact whether or not the defendant by the issuance of the policy waived misrepresentations made in order to procure it where there was no evidence that the defendant's agents knew the representations to be false or in any way colluded with the insured." If there was any competent evidence in the case, it was the duty of his honor to send the case to the jury. Bouknight, a witness for the defendant, testified:

"I delivered this policy to Nellie Johnson, and was present at the time the application was signed. I delivered the policy to the same woman who signed the application. This all happened at College street house, although she gave her address as Lincoln street. A photograph of the application is attached to the policy. I heard all of the questions read over to her, and her answers were

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