Weston v. Metropolitan Life Ins. Co.
| Decision Date | 28 February 1945 |
| Docket Number | 15716. |
| Citation | 33 S.E.2d 386,206 S.C. 128 |
| Parties | WESTON v. METROPOLITAN LIFE INS. CO. |
| Court | South Carolina Supreme Court |
Norbert A. Theodore, of Columbia, for appellant.
McLain & Elliott, of Columbia, for respondent.
This appeal is closely allied with that reported under the title of Murray v. Metropolitan Life Insurance Co., 193 S.C. 368, 8 S.E.2d 314, 317.
The insured and the insurer are the same. In that case this court said:
'Under the principles of law above adverted to it may not be questioned that in a controversy between the insured or his beneficiary on the one hand, and the company, on the other, in an action arising upon the policy issued as of December 10, 1937, involving the issue of waiver, it would be proper to submit that question to the jury.'
The present action is upon a policy which appears to be that referred to in the foregoing quotation in which it was said that in an action upon it, involving the issue of waiver, it would be proper to submit that question to the jury. But this usual form of trial of such cases was not followed in this proceeding, and all issues of law and fact were submitted to the trial judge for decision. The following portion of the trial record is copied from the transcript for appeal:
'The Court: What I was going to say, if counsel for both sides agree it is a matter of law, I will discharge the jury.
'Mr. Elliott: We think it is proper.
'Mr. Theodore: It suits me.
'The Court: Then it is understood that I am to consider the testimony in my findings?
'Mr. Elliott (Stenog. note: Elliott stricken out and the following):
'Both Counsel: Yes.
'The Court: It shall be understood that I have tried the case just as if I had never had the jury, on the facts and everything?
'Counsel for both sides: Yes, sir.'
Respondent issued its policy upon the life of the deceased in the amount of $468 dated Dec. 20, 1937, which required the payment of a weekly premium of forty-five cents with his estate named as beneficiary, and the premiums were paid until the death of the insured on June 5, 1938. This action was commenced on March 25, 1940 upon a complaint which was usual in form.
In the answer a clause of the policy was set up, called the 'voidable clause', which was identical with that involved in Grant v. Metropolitan Life Ins. Co., 194 S.C. 25, 9 S.E.2d 41; its pertinent contents were quoted in that decision and need not be repeated here. (That case is clear authority for the validity and enforcibility of the clause in the absence of conflict with statute. See also Jones v. Metropolitan Life Ins. Co., S.C., 33 S.E.2d 384. It was further alleged in the answer that the insured was attended by a physician within two years prior to the issuance of the policy and that it had not been shown by any claimant under the policy that such medical attention was not for a serious disease, that reference to this treatment or attention was not endorsed upon the policy by the insurer (however there was some endorsement, which will be later referred to) and that the latter had, on that account, declared the policy void and tendered return of the aggregate of the premiums, $10.80, which had been paid, and such tender was continued.
Appellant demurred to this defense and moved to strike it out as contrary to Code, sections 7986 and 7987, in view of the lapse of time between the procurement of the policy and the commencement of the action and resultant interposition of the defense. The demurrer and motion were overruled, the propriety of which is challenged by the exceptions.
Section 7986 is a rather old (1878) statute but it has recently had a hectic history. It was as follows in the Code of 1932:
The General Assembly undertook to amend the statute by Act No. 224 of 1935, 39 St. at Large, p. 303. The attempted amendment was before this court in the case of Stewart v. Woodmen of the World, 195 S.C. 365, 11 S.E.2d 449, and it was held to be unconstitutional, wherein it purported to alter the provision for the receipt of premiums for the space of two years to a period of limitation of two years from the date of the policy. Thereafter the General Assembly amended it again by Act No. 221 of 1941, 42 St. at Large, p. 309, and it is the form of this amendment which appears as section 7986 of the Code of 1942, inapplicable to this controversy because it was enacted after the happenings here involved and does not purport to be retroactive. New York Life Ins. Co. v. Truesdale, 4 Cir., 79 F.2d 481. From this it is clear that the incontestable statute pertinent to this case did not bar the insurer's defense, for premiums on the policy were paid for only about six months, much less than the period of two years provided in the applicable law, so appellant's first question (insofar as it may be deemed to relate to sec. 7986) might be decided against her without need of further discussion.
But there is an equally applicable and controlling consideration which is fatal to appellant's contention even if section 7986 were applied to this controversy in the form in which it appears in the present (1942) Code. It will be dealt with subsequently in the discussion of the pertinency of sec. 7987, to which alone appellant appears to have shifted her position in her brief on appeal.
Statutes such as these, pertinent to a policy of insurance, are as much a part of a policy as if expressly incorporated in it, and prevail over inconsistent policy provisions. New York Life Ins. Co. v. Greer, 170 S.C. 151, 169 S.E. 837; Brownlee v. Charleston Motor Express Co. et al., 189 S.C. 204, 200 S.E. 819. This rule is usually invoked by an insured or beneficiary but, by the same token, the insurer is entitled to whatever benefit to it may accrue therefrom. It is a poor rule (which this is not) that does not work both ways.
The case was first tried before a jury to which the issues were submitted, but they disagreed and a mistrial resulted. In due course trial was again entered upon before another jury and taken away from them by consent, as has been seen.
Respondent introduced the testimony of a physician who had examined and treated the insured at his office shortly within the two-year period before issuance of the policy, had examined his chest and determined that he had tuberculosis, and had prescribed rest and a cough medicine containing a sedative to quiet that symptom. In addition to the statutes heretofore and hereinafter referred to, appellant relied upon the facts that before issuance of the policy the insured had been referred to a physician selected by the insurer to make an examination (who did such in an evidently ineffective manner) and that the insured, then the applicant for the insurance, had disclosed to this examining physician that he had been treated for a cold two years before by still another physician, who was not the one who testified. The stated facts, that there was a physical examination by a physician for the company and that there was some disclosure, though incomplete or inaccurate, of former medical treatment, were undoubtedly evidence of waiver by the insurer of the existence of the serious disease with which the applicant was afflicted, but it is not such as would create only the inference that the insurer had in fact legally waived the applicant's physical condition and prior medical treatment, and the court did not err in refusing appellant's motion for directed verdict on that ground.
Nor was there error in the court's view of the inapplicability of section 7987 of the Code. The latter is the first question posed in plaintiff's...
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