Wingo v. New York Life Ins. Co.
| Decision Date | 26 January 1918 |
| Docket Number | 9881. |
| Parties | WINGO v. NEW YORK LIFE INS. CO. MAXWELL v. SAME. |
| Court | South Carolina Supreme Court |
Appeal from Circuit Court, Spartanburg County; Rice, Judge.
Action by Annie L. Wingo against the New York Life Insurance Company, and by Augustus L. Maxwell against the same defendant. The cases were tried together by consent. Judgment for defendant, and plaintiffs appeal. Reversed, and new trial granted.
Nicholls & Nicholls and John Gary Evans, all of Spartanburg, for appellants.
James H. McIntosh, of New York City, and Thomas & Lumpkin, of Columbia, S. C., for respondent.
These two cases were tried together by consent of counsel before Judge Rice and a jury at Spartanburg, S.C. The court, upon all the facts being in and on motion of defendant's counsel, directed a verdict in favor of the defendant in both cases. After entry of judgment plaintiffs appeal, and by three exceptions present the only question in the case: Was there any testimony upon which the jury could base a verdict for the plaintiffs?
A careful reading of the evidence satisfies us that there was ample testimony to submit the case to the jury. 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 part of the plaintiff and the other on the part of the defense. Dr. Bunch was the agent of the defendant when he examined the applicant for the insurance policies sued on, and 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 to the effect that Wingo did have tuberculosis, as he thought and had a focus on his lung that any doctor could discover.
The evidence of Crews, the agent, who solicited the insurance and who was charged with ascertaining the facts of Wingo's health when he applied for insurance, was to the effect that Wingo was healthy and had no signs of tuberculosis. This testimony certainly should have been submitted to the jury.
Justice Fraser, in Gamble v. Insurance Co., 95 S.C. 199, 78 S.E. 876, uses this language:
"An examination of the deceased by a physician chosen by the insurer is some evidence of one or two things: Either that the disease did not exist, or that its existence was known to and waived by the insurer." His honor erred in finding facts that were exclusively the province...
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