Molester v. Metro. Life Ins. Co

• Decision Date: 26 March 1935
• Docket Number: No. 14027.,14027.
• Citation: 179 S.E. 490
• Parties: molester. v. metropolitan life ins. co.
• Court: South Carolina Supreme Court

179 S.E. 490

molester.

v.metropolitan life ins. co.

No. 14027.

Supreme Court of South Carolina.

March 26, 1935.

Appeal from Common Pleas Circuit Court of Sumter County; P. H. Stoll, Judge.

Action by Marion W. McLester against the Metropolitan Life Insurance Company. From an order of the circuit court reversing a verdict for the defendant directed by the magistrate, defendant appeals.

Order of circuit court reversed.

Elliott, McLain, Wardlaw & Elliott of Columbia, and Lee & Moise, of Sumter, for appellant.

M. M. Weinberg and Marion Moise, both of Sumter, for respondent

BONHAM, Justice.

The respondent is the beneficiary of a policy of insurance on the life of Louisa W. Bandolph, issued by the appellant insurance company on the 18th day of October, 1932; the insured died the 9th day of April, 1933. Proofs of death were duly made. The company denied liability, and suit followed. The allegations of the complaint are those which are usual in such cases. For answer, the defendant admitted the allegations of the complaint, but denied its conclusions of law.

For affirmative defense it was alleged that the insured by false answers and fraudulent concealments as to the state of her health and her physical condition, in the application for insurance, had perpetrated a fraud upon the company which operated to render the policy issued to her null and void by its terms and conditions.

The action was brought in the court of Magistrate Reynolds, of the Third magisterial district of Sumter county. By the Act of the General Assembly, approved the 18th day of March 1933 (38 St. at Large, p. 167) this court was given jurisdiction in civil cases to the extent of $1,000. The magistrate presiding in this case is a lawyer of experience andability. The case was heard by him, with a jury, the 12th day of January, 1934. At the close of the testimony the defendant made a motion for directed verdict, which was then refused. The magistrate states thereabouts: "I refused the motion for directed verdict at this time for the reason that the trial of the case had consumed the entire day, and I thought it would be best to submit the case to the jury, and at my leisure study the numerous authorities cited for and against the directed verdict. If I came to the conclusion that a directed verdict should have been granted, I could set aside the verdict and grant the motion for a directed verdict and no harm would be done. If I granted the motion for a directed verdict and the Appellate Court reversed my decision, the County would not be put to the expense of another trial, because the jury had passed on the facts and rendered their verdict. So, for this reason I submitted the case to the jury with the understanding that I would consider the facts in the light of the law cited me, and render my decision later."

The jury found for the plaintiff; the verdict was set aside by order of the magistrate, and verdict directed for defendant. Plaintiff appealed to the circuit court, which appeal was heard by Hon. Philip H. Stoll, who reversed the order of the magistrate in an order in which he said: "Upon a full hearing of the same (the appeal) it appears that under the law as laid down in the Wingo Case [(Wingo v. New York Life Ins. Co.), 112 S. C. 139, 99 S. E. 436], the McLane Case [(McLane v. Metropolitan Life Ins. Co.), 154 S. C. 366, 151 S. E. 608], the Palmer Case [(Southeastern Life Ins. Co. v. Palmer), 129 S. C. 432, 124 S. E. 577], and related cases there was evidence of waiver to be submitted to a jury, and for that reason It is Hereby Ordered that the Order appealed from be, and the same is hereby reversed."

The appeal to this court is from the order of Judge Stoll.

The waiver to which the order of Judge Stoll refers is waiver by the company of the alleged frauds and concealments of the insured, after knowledge thereof.

A comprehensive reading of all the testimony set out in the brief leaves no particle of doubt that the insured deliberately planned to, and did, perpetrate a fraud upon the insurance company in obtaining this policy. No agent of the company solicited her to he insured. She went of her own volition to the office of the company in Columbia and sought the insurance. She lived some twenty miles away at the village of Gadsden. It appears from the record that the insured was confined in the hospital from February 16, 1932, to March 20, 1932. Her ailment was diagnosed as cancer of the uterus; it was deemed to be a surgical case. She was informed that her case was hopeless, so far as a cure was concerned, that there was nothing that surgery could do for her. The infected place was cauterized to remove the offensive odor, and she nearly died from loss of blood; a transfusion was necessary to save her life. In 1920 she had been operated on for a lesion at the mouth of her stomach. She was a school teacher, and before going to the hospital in 1932 she was several times deterred by illness from discharging her duties.

It is needless to go into all the sordid details disclosed by the record In the face of these positive proofs of the terrible condition of her health, the insured, in her application for insurance, made statements thereabout which she knew to be false. In answer to questions she said that her health was good: that her last sickness was "painful menstruation, one week"; she was asked if she had ever had any surgical operation, serious illness or accident, to which she replied, "No." To the question whether she had been attended by any physician within the last five years, she answered, "Malaria 1929." To the question, "Have you had any treatment within the past five years at any dispensary, hospital or sanitorium?" she answered, "No." It is useless to continue. There can be but one deduction from the testimony, and that is that this policy was obtained by the deliberate and designed fraud of the insured.

She agreed in her application that: "It is understood and agreed, 1. That the foregoing statements and answers are correct and wholly true, and together with the answers to 'Part B' hereof they shall form the basis of the contract of insurance if one be issued."

In other words, these statements and answers were material in showing the true state of her health; the proof of their falsity, by the terms of the contract of insurance itself, renders it null and void.

But the order appealed from holds that "under the law as laid down in the Wingo Case, the McLane Case, the Palmer Case, and related cases, there was evidence of waiver to be submitted to the jury." Let us see.

The Wingo Case, 112 S. C. 139, 99 S. E. 436, turns upon the fact that "there was an irreconcilable conflict between the testimony introduced in the case, particularly that of Dr. Bunch and that of Dr. Black, one on the partof the plaintiff and the other on the part of the defense. Dr. Bunch was the agent of the defendant when he examined the applicant. * * * He testified that Wingo never had suffered from tuberculosis and had no spot or focus on his lung. Dr. Black, in behalf of the defendant, testified * * * that Wingo did have tuberculosis, * * * and had a focus on his lung that any doctor could discover." Certainly that made an issue for the jury.

In the present case, the evidence is uncontradicted that the insured had the serious disease (cancer), and ailments disclosed by the medical witnesses and hospital records, and that she knew it. In the Wingo Case in that state of contradiction of the evidence on material issues all the witnesses testified to the good reputation of Mr. Wingo. The court said that in these circumstances the proof of good character and reputation made an issue for the jury. In the present case, the plaintiff offered but one witness, who testified that the reputation of the insured was good. This testimony made no issue for the jury against the uncontradicted evidence that the answers made by the insured in the application for insurance were false and known by her to be false.

The Wingo Case is not authority here.

In the McLane Case, 154 S. C. 366, 151 S. E. 608, it was held that: "Instruction that examination of insured by physician for insurer was evidence that disease did not exist, or that its existence was known about and waived by insurer, held not erroneous in view of other instructions fully covering the law as to defense of fraud and claim of waiver." (Italics added, except for the words "held not erroneous.")

The court in the main opinion did not override the instruction in the charge of Judge Mauldin in the second Wingo Case, 155 S. C. 206, 101 S. E. 653, which is that sought to be reproduced in the McLane Case. It approved it in effect, with an addition to the charge of Judge Mauldin to the effect that if the failure of a physician to discover a disease of the insured was due to the fraud of the applicant, then the plaintiff could not recover.

In the present case the uncontradicted evidence is that there was nothing in, the evidence that would indicate to the examining physician that an examination of the genital organs of the applicant was necessary. On the contrary, the answers and statements of the applicant were apparently intentionally directed to avoid such examination. It is al so in evidence that because of the...