Ward v. New York Life Ins. Co.

• Decision Date: 18 July 1924
• Docket Number: 11550.
• Citation: 123 S.E. 820,129 S.C. 121
• Parties: WARD v. NEW YORK LIFE INS. CO.
• Court: South Carolina Supreme Court

123 S.E. 820

129 S.C. 121

WARD v. NEW YORK LIFE INS. CO.

No. 11550.

Supreme Court of South Carolina

July 18, 1924

Appeal from Common Pleas Circuit Court of Florence County; E. C Dennis, Judge.

Action by Mary D. Ward against the New York Life Insurance Company. Judgment on directed verdict for defendant, and plaintiff appeals. Affirmed.

S. J Royall and R. B. Fulton, both of Florence, for appellant.

Thomas & Lumpkin, of Columbia, for respondent.

FRASER J.

Agreed statement of testimony and exhibits:

"As will be noted the entire cause of action of the plaintiff was admitted by the defendant in its answer and in open court, an affirmative defense being set up by it. The defendant thereupon offered to introduce evidence in support of the allegations set up in its answer. The plaintiff through her attorneys, objected to any and all testimony offered by the defendant in support of the allegations in its answer upon the ground that the policies of insurance were more than two years old at the time of the death of the insured, and also more than two years old at the time of the reinstatement, and, further that the premiums had been paid and that the policies of insurance were in full force and effect at the time of the death of the insured, and that the insurance company had accepted two premiums for two full years prior to the reinstatement, and that the policies contained a provision making the policies incontestable for any cause after two years from its date of issue except for nonpayment of premiums; and, further, that under the statutes in this state '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; that the assured person had made false representations, and the said application shall be deemed and taken to be true.' "

"His honor, E. C. Dennis, presiding judge, overruled the objection and permitted the defendant to introduce testimony in support of the allegations in its answer.

It was proven that the assured, W. O. Ward, in the spring of 1921, had been confined in the Florence Infirmary on three different occasions, on each occasion suffering with alcoholism. It was proven that the assured, W. O. Ward, had been treated several times by Dr. W. S. Lynch, of Lake City, in the spring of 1921, and also in the early fall of 1921, for delirium tremens, staying most of the time in the Lynch Hospital at Lake City. It was proven that the assured, W. O. Ward, had been treated by Dr. H. M. Graham of Scranton, Florence county, on several occasions for alcoholism. It was proven that the assured, W. O. Ward, had been committed to the State Hospital for the Insane in May, 1921, and paroled about the middle of June, 1921, this petition having been made by wife of insured. The plaintiff admitted that the answers contained in the application for reinstatement were untrue. It was proven, however, that the plaintiff knew nothing about the questions and answers in the application for reinstatement, and there was no proof that she was a party to the alleged fraud.

For the purposes of this appeal it is admitted that there was a lapse of the policies of insurance on October 23, 1921, for nonpayment of premium, and that the said policies of insurance were reinstated by the New York Life Insurance Company after the days of grace had expired.

No testimony was offered in the rebuttal by the plaintiff. Thereupon the defendant made a motion for a directed verdict upon the ground that the sole and only inference to be drawn from the testimony was that the assured, W. O. Ward, had obtained a reinstatement of the two insurance policies upon fraudulent representations contained in his application for reinstatement, and the proof same was not contradicted by the plaintiff, but was, in fact admitted. The proofs of death dated February 27, 1922, showed the deceased died of 'excessive use of whisky.'

The plaintiff then made a motion for a directed verdict in her behalf on the same grounds upon which she, through her attorneys, objected to the introduction of any testimony by the defendant in support of the allegations in its answer. The presiding judge thereupon directed a verdict in favor of the defendant.

It is hereby agreed by and between R. B. Fulton and Sam J. Royall, attorneys for the plaintiff, and Thomas & Lumpkin, attorneys for the defendant, that the foregoing shall constitute the record in this cause for the purposes of the appeal in the Supreme Court.

It is further agreed that any original agreements may be used in arguments before the Supreme Court. Thomas & Lumpkin,

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