Sirgany v. Equitable Life Assur. Soc. Of United States

• Decision Date: 12 June 1934
• Docket Number: No. 13867.,13867.
• Citation: 175 S.E. 209
• Parties: SIRGANY. v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES (two cases).
• Court: South Carolina Supreme Court

175 S.E. 209

SIRGANY.

v.EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES (two cases).

No. 13867.

Supreme Court of South Carolina.

June 12, 1934.

Appeal from Common Pleas Circuit Court of Charleston County; C. C. Featherstone, Judge.

Actions by Najeeb Sirgany and by Najeeb Sirgany, trustee, against the Equitable Life Assurance Society of the United States. Judgment for plaintiff, and defendant appeals.

Affirmed.

Thomas, Lumpkin & Cain, of Columbia, and N. B. Barnwell, of Charleston, for appellant.

Hagood, Rivers & Young, W. Turner Logan, and John I. Cosgrove, all of Charleston, for respondent.

STABLER, Justice.

On June 25, 1929, the defendant company insured the life of one Rosa Sarkis, a resident of the city of Charleston, in the sum of $5,000, to be paid at her death to her son-in-law, Najeeb Sirgany, trustee, for the uses and purposes stated in the policy. On June 28, a few days after the first policy was issued. Mrs. Sarkis made application for additional insurance, and on July 3 the defendant issued to her, without further medical examination, a second policy of $5,000, in which Sirgany was designated as beneficiary. The first annual premiums on the policies, amounting to $472.35, were paid by the insured. Mrs. Sarkis died on May 4, 1930, within the first insurance year. Her death, as disclosed by proofs submitted to the company, was due to chronic lymphatic leukemia, from which, according to the report of the attending physician, she had probably suffered for several years. Following an investigation, the society refused to pay the insurance, but offered to return the premiums. The plaintiff, however, declined to accept the tender and in due time instituted these two actions for the collection of the policies; the amount in each case being reduced to $3,000 for the purpose, it seems, of making the actions triable in the state court.

The defendant admitted all material allegations of the complaints, except that there was a sum due and owing under either policy; the following language being used in both answers: "This defendant * * * admits that it has failed and refused to pay such sum and alleges that such declinationand refusal was on account of the fact that the said policy or contract of insurance was on June 18, 1930, rescinded on the ground of the fraud practiced in inducing this defendant to issue and deliver said policy of insurance, and that the defendant did at such time, and does now, deny to assume any liability thereunder." It also set up as an affirmative defense "that the policies were void on account of the false and fraudulent representations made by the insured in order to induce the issuance thereof."

By agreement the cases were tried together in the court below, Judge C. C. Feather-stone presiding. Defendant's motion for a directed verdict, made upon grounds which we shall later consider, was overruled, Counsel for the company then claimed the right to make the opening and closing arguments to the jury and asked to be allowed to do so. This request was refused by the trial judge for the reason, as stated by him, that the motion came too late. The jury found for the plaintiff in each case the amount sued for, and from judgments entered the defendant appealed.

The first question presented for consideration is whether the trial court committed error in refusing to direct a verdict for the defendant under the evidence offered in the case.

In part II of the application, among the questions answered by Mrs. Sarkis, the answers to which were written down by Dr. Frampton, the company's examining physician, were the following:

"Q. 3-F. Have you ever been under observation or treatment in any hospital, asylum or sanatorium? (State where and when).

"A. Yes, Tonsillectomy--Suspense uterus.

"Q. Have you ever had or been treated for any disease or disturbance of:

"F. The Skin, Bones, Glands, Eye or Ear?

"A. No.

"7-F. Have you had any other illness or injury not mentioned above?

"A. No.

"9. State every physician or practitioner whom you have consulted or who has treated you during the past five years? (If none, so state).

Name and Address Dates and Details Result Dr. A. J. Buist, Minor Ailments Good"

Charleston, S. C.

The appellant contends that, at the time the insured signed the application and made the foregoing responses to the medical exam iner, she was suffering, as shown by the evidence, from a fatal malady, and that her representations and statements were material to the risk, were false and fraudulent, and were knowingly made by her with intent to deceive the company and did deceive it into issuing the policies.

Dr. Buist, a specialist in surgery, and a highly respectable and an experienced physician, testified that he examined Mrs. Sarkis in February, 1929, and found that she was suffering with enlarged glands in the groin, to which his attention was called by her, and also from the same trouble in her neck; that on April 20, he sent her to the Riverside Infirmary, where she remained for two days for laboratory tests, and that he there made a diagnosis of lymphatic leukemia; that this disease is "characterized by changes in the blood and blood cells, lymphatic glands, spleen and bone matter, changes taking place in those structures, which finally produces death"; that "about the only abnormality of the skin she had was a paleness and a discoloration which you get in anemia, a putty looking skin"; that he did not disclose to her what her trouble was, but she must have known that something was wrong with her; that he continued to treat her for several days and then turned her over to Dr. Robert Wilson, a specialist in medical diseases.

Dr. Wilson stated that he also diagnosed Mrs. Sarkis' trouble to be chronic lymphatic leukemia, a progressive disease which cannot be cured; that, as It can be relieved by X-Ray treatment, he referred her to Dr. Robert Taft, a specialist in that line; that he did not tell Mrs. Sarkis that the disease would probably cause her death, for to do so might have a bad effect on the patient, but that he did tell her that he could not effect any relief by medication, and that she would have to undergo X-Ray treatment for that purpose. He testified also that in his opinion Mrs. Sarkis knew she was not a well woman.

Dr. Taft stated that he made no examination of Mrs. Sarkis, but was advised of the diagnosis made by the other physicians; that he knew she was suffering from leukemia and gave her the X-Ray treatment for her glands.

Dr. Frampton, the company's medical examiner, said that on May 30, 1929, he examined Mrs. Sarkis for life insurance, at the request of the company's special agent, J. H. Miller; that while he may not have read the questions as written in the application, as she "did not understand English very well, " as he recalled, he was certain that he did convey to her mind the intent or purpose of thequestions; that he did not list the individual illnesses given in question 9, but recorded all information she gave him in regard to her former health, etc., by the use of the words "minor ailments." He also testified that he made the usual examination in her case, but did not observe any enlarged glands in the neck or notice anything peculiar about the color of her skin; that she appeared, as a matter of fact, to be a perfectly normal risk.

We have read with painstaking care the entire record and are constrained to hold that the trial judge properly submitted the ease to the jury. While, as already indicated, Drs. Buist and Wilson expressed the opinion that Mrs. Sarkis must have known that she was not a well woman, they both stated positively that they had not disclosed to her the nature of her disease or that it would prove fatal. In addition, Dr. Buist testified that he had known her for about twenty years, that he had always found her perfectly honest, and that her general reputation was good. Dr. Frampton, who it must be assumed made a proper examination of the applicant in order to determine whether she was a good risk for insurance, was unable to find anything wrong with her. As more than one inference could be drawn from the testimony, the court could not say, as a matter of law, that Mrs. Sarkis intended to deceive the company and to perpetrate a fraud upon it by her answers, which were representations and not warranties, to the questions propounded by the medical examiner.

The appellant argues that this case is controlled by the principles announced in Johnson v. New York Life Insurance Company, 165 S. C. 491, 164 S. E. 175. We think, however, that the cases are easily distinguishable. In the Johnson Case the insured stated in his application that he did not drink spirits or other intoxicants in any quantity at all; that he had only taken an occasional drink in the past, and had not taken any of them to excess in the last five years. The...