MacKendree v. Southern States Life Ins. Co. of Alabama

• Decision Date: 14 July 1919
• Docket Number: 10218.
• Citation: 99 S.E. 806,112 S.C. 335
• Parties: MacKENDREE et al. v. SOUTHERN STATES LIFE INS. CO. OF ALABAMA.
• Court: South Carolina Supreme Court

99 S.E. 806

112 S.C. 335

MacKENDREE et al. v. SOUTHERN STATES LIFE INS. CO. OF ALABAMA.

No. 10218.

Supreme Court of South Carolina

July 14, 1919

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

Action by Elizabeth S. MacKendree and others against the Southern States Life Insurance Company of Alabama. Judgment for defendant, and plaintiff's appeal. Reversed, and new trial ordered.

Bomar & Osborne and Wyche & Foster, all of Spartanburg, for appellants.

Sanders & De Pass, of Spartanburg, and A. J. Orme, of Atlanta, Ga for respondent.

GAGE J.

Action upon two contracts of insurance upon the life of S. Marshall MacKendree. The court directed a verdict for the defendant upon the ground that the only reasonable conclusion to be drawn from the testimony was that the insured had suicided, which act by the words of the contract avoided the same.

1. A careful consideration of the testimony, after two arguments, brings us to the now settled conclusion that the issue of how the deceased met his death ought to have been submitted to the jury. The presumption of fact is that a man will not take his own life. Every action of a man, voluntary and involuntary, tends to preserve his life. The testimony in this case did not so far and so surely overcome that presumption as to have warranted the court to take issue from the jury.

2. It was suggested by the appellant's counsel that it is incumbent on the defendant to prove beyond a reasonable doubt that the deceased killed himself. So much is not correct; like any other fact in the case, that fact need only to be proved by a preponderance of the testimony. See Hills v. Goodyear, 4 Lea (Tenn.) 241, 40 Am. Rep. 5.

3. The respondent contends further, to sustain the judgment: (1) That the deceased procured the contract to be made by his false and fraudulent answers in the application to questions directed to an inquiry into his former state of health; and (2) that the deceased warranted his answers to be true. Thereto the plaintiff replies that a certain clause in the contract forecloses a consideration of those issues. The following is the clause referred to:

"The policy shall be incontestable from date of issue, except for nonpayment of premiums, subject, however, in case of misstatement of age to an adjustment of the insurance at the correct age of the insured: Provided that, in the event of self-destruction, whether sane or insane within one year of such date, the company shall be liable only for the amount of the premium paid on the policy."

The five words we have italicized are printed in the policy in bold-faced type.

At the first argument the writer of this opinion was of the mind that the quoted clause did not exclude a plea of fraud. But reflection has led to a different conclusion. Respectable authority has been cited on both sides of the question; and perhaps the weight of numbers is with the insurer. Let the citations be reported.

It is plain that the expressed words of the contract declare that the policy shall "be incontestable from...