Owen v. Bankers' Life Ins. Co. of City of New York

• Decision Date: 23 November 1909
• Parties: OWEN et al. v. BANKERS' LIFE INS. CO. OF CITY OF NEW YORK.
• Court: South Carolina Supreme Court

66 S.E. 290

84 S.C. 253

OWEN et al. v. BANKERS' LIFE INS. CO. OF CITY OF NEW YORK.

Supreme Court of South Carolina

November 23, 1909

Appeal from Common Pleas Circuit Court of Greenville County; S.W. G Shipp, Judge.

Action by Annie M. Owen, as administratrix of Paul Owen and Fay Owen, deceased, and another, by guardian ad litem, against the Bankers' Life Insurance Company of the City of New York. From a judgment for plaintiffs, defendant appeals. Affirmed.

Barron Moore & Barron and Sirrine & Charles, for appellant. Cothran Dean & Cothran, for respondents.

HYDRICK J.

This was an action on a life insurance policy dated August 24, 1898, and delivered to the insured, E. B. Owen, at Greenville, S.C. The sole defense was that the insured falsely and fraudulently represented in his application for the policy that he was of temperate habits, and never drank wines, spirits, or malt liquors, and that said representations were, by the terms of the application and policy, made warranties, the breach of which avoided the policy. Owen died in July, 1907. When the defendant offered evidence to prove that the representations were false, when made, it was, on objection of plaintiff, excluded. Section 1825, 1 Civ. Code 1902, reads as follows: "All life insurance companies that shall receive the premium on any policy for the space of two years shall be deemed and taken to have waived any right they may have had to dispute the truth of the application for insurance, or that the assured person had made false representations, and the said application and representations shall be deemed and taken to be true." Section 1826 is as follows: "Life insurance companies are hereby authorized to institute proceedings to vacate policies on the ground of the falsity of the representations contained in the application for said policy: Provided, the same be commenced within two years from the date of said policy." These sections were enacted in 1878. 16 St. at Large, p. 530.

In view of these provisions of the statute, the evidence was properly excluded; but defendant contends that the statute applies only to representations, and that, by the terms of the application and policy, the representations of insured as to his habits became warranties. Without deciding that point, it is sufficient to say that they were nevertheless representations, and came within the terms of the statute. But the statute further says the company shall not, after having received the premiums on a policy for two years "dispute the truth of the application," and "the application and representations shall be deemed and taken to be true." It makes no difference, therefore, whether the statements were representations or warranties. Having received the premiums for more than two years without availing itself of the privilege accorded it by section 1826, ...