*1 cies between the notes typed testimony. and her For these reasons, the clearly defendant prejudiced by was not the trial judge’s refusal to require production of the notes. issue,
As the second judge we hold that the did err by refusing give instructions limiting as to the jury’s consideration of the prior defendant’s convictions. It is the law of this state that the jury charged must be that evi- dence of prior convictions is for impeachment pur- admissible Brown, only. State v. poses
We hold the error, however, was harmless and thus not reversible. The defendant was not prejudiced by the error. His prior convictions were not drug related, and on direct he examination, testified that he had never sold crack anyone. cocaine to The jury could have be- chosen to lieve the defendant, but instead chose to the over- believe whelming evidence against him. stated,
For the reasons order is appealed affirmed. Affirmed. CARROLL,
Mary Respondent Louise v. JACKSON NATIONAL COMPANY, Appellant. LIFE INSURANCE
(405 425) Appeals Court of *2 Turner, & Padget, Graham Laney, IV W. Edward appellant. Laney, Columbia, for Fitzer, Columbia, respondent. Stephen for MacRae, Lamb, LeBoeuf, Leiby & M. Theisen of Rita Ins., as ami- American Council D.C., Washington, of Life cus curiae. 28, 1991. May Decided 8,1991; April
Heard July 2,1991. Denied Rehearing Judge: Gardner, (Carroll) this action to re- brought Carroll Louise
Mary The court $50,000 policies. life insurance on two cover Jackson Na- motion because summary judgment her granted (the ad- Company), Insurance Company tional Life Insurance the in- connection between prove mitted it could not a causal and the cause history of his health sured’s We affirm. of death.
ISSUE is whether a life a causal The sole issue insurer must to health pertaining between a connection a life coverage before can be voided under and death history insurance
FACTS Company issued a Insurance alleges complaint (the the life of Pat J. Carroll on $50,000 life insurance 1988, January 4, and another father, on Deceased), Carroll’s father Carroll’s died on 26, 1988. $50,000 May on 28,1989. March
The Insurance Company answered the complaint but did file a counterclaim for recission or pol- cancellation of the icy. Its answer did contain the following:
12. The deceased and the plaintiff misrepresented de- ceased’s medical condition history and on the application for each of the policies, which misrepresentations were material, therefore, plaintiff is not any entitled to recovery on either policy.
When the case came trial, the Insurance con- Company ceded that there was no causal connection between the De- ceased’s alleged misrepresentations of his health history his death. admission, Because Carroll moved for sum- mary judgment on the basis of Johnson v. South the case Carolina Ins. granted
trial judge summary judgment. The on judge, relying Johnson, order to defeat recovery the defendant a preponderance show of the evidence that there was *3 causal connection any between the and cause of death.
DISCUSSION We agree with the judge’s reasoning, despite trial vig- the orous argument the Johnson by Insurance that in- Company, volved an entirely different situation and that it the was not intent of the Supreme John- apply Court to the of reasoning son to the case before us.
Johnson a fire insurance policy covering both the build- ing contents;, they destroyed by Johnson, were fire. in filing loss, his claim the made the misrepresentations as to contents but not as to the building. The trial court awarded Johnson damages building the loss of the but found for the as to the contents. This Court reversed the trial that, holding court in with of provision pol- accordance a the icy, the fraud the relating pol- the tainted entire contents icy. Supreme The in Court reversed this that noting insurance, “other of types this court has consistently, an that insurer pol- must establish a causative link between a icy exclusion loss before defeated.” recovery may be (2d) 288 S.C. con- at 794. the fraud Because cerned contents, portion recovery that was prop- extend Nevertheless, since the fraud did not
erly voided. relation between there was no causative dwelling, dwelling, and the loss of Johnson was entitled to recover Court held Supreme dwelling. Johnson, through Chief speaking in Court Supreme the result said, “We are mindful Gregory, Justice minority juris- in a accepted only has been today reached dictions____We position. majority’s] unpersuaded [the are to the number, reasoning, support, not their lends Only their consistently spearheaded This Court has position. insurer’s 795. 242, 341 288 S.C. at changes the law.” Court intended Supreme is whether the then question in Johnson to life insurance cases. apply reasoning its it We think that does for several reasons. Court has held that answers
First,
an
for life
concerning
applicant
the health of
questions
are
not “warranties.”
“representations”
insurance
false,
answers,
even if
do not void
insurance
Such
risk,
material
to the
known
they are
unless
the intent
to mislead the insurer and
false, made with
to be
issuing
them as
basis
upon
relies
the insurer
Beckham,
Co. v.
Ins.
Atlantic Life
(1962).
of fraud as
the elements
proving
Second, in addition
Co., misrepresentations
Ins.
set forth in Atlantic Life
of the
part
fraud on the
by negligence or
can be waived
has
itself
an insurance
unless
agent of
Co., State Ins.
Berry Virginia
See
contrary provisions.
13,
Finally, long-standing accord with the rule *4 of this an in- the law state does not favor forfeiture of especially where the insurer void a rights, attempts sured’s to occurrence creating liability. after the of the event policy States Ins. Small Coastal S.C. Life are The reasons obvious for this rule. After an dies, lips testify his are sealed and he cannot either to insured or to his to representations about intent knowledge his testify agent can he as to whether the deceived Nor deceive. misrepresentation. thereby waived him and In the reasoning above, view of it seems to this logical in view of especially strong of our language Johnson, Supreme Court in after the death of an insured, a life insurance company wishing policy to void must establish a causal connection a misrepresenta- between tion of the death insured. position strengthened
This by 1988 S.C. Act 482 [codified (1989)]. § at S.C. Code Ann. 38-63-220 provides, This section effect, in that if an insurer to proceedings institutes vacate a on the grounds misrepresentations in contained policy application, the proceedings must commence during the lifetime of the insured and a period years within of two from the date of the issue of the Even if this section (such applies only offensive actions a complaint as seeking rescission) and not defensive such actions as the avoidance case, in pleaded statute, this nevertheless, clearly indi- the legislative cates intent that policies should not be for- if the feited insurer attempts void a after the death of the insured. It seems clear to us 1988 when it passed 38-63-220, Section the Legislature in mind principle long established courts that this state abhors forfeiture, especially after the event liability. which creates
CONCLUSION For the set above, reasons forth we hold that when a life in- surance seeks to after of the liability avoid the death insured, on of a basis contained application, establishing it has the burden of a causal relation death insured. between the of the For order is reason, appealed this affirmed.
Affirmed. C.J.,
Shaw, J., separate concurs in concurs Sanders, opinion. Judge (concurring): Chief
Sanders, I would state the issue place, differently or, In the first my In we least, elaborately. opinion, upon more are called whether the insurance decide causal the misrepresentation connection between by the deceased *5 496 whether, hand, other the company death on the
and his or if have the policies that it would not issued prove only must of health. the not the state his misrepresented deceased had required prove It to me that the should be company seems latter, the not the former. only a whether issue life insur- obviously, deciding Quite take into account ance the insurance must policy, ap- the of for the Where an person applying health his it to me misrepresents health, the state of seems plicant not if it can only liable, fair that the should be had applicant it would have if the prove not issued I to affirm. am, nevertheless, persuaded told the truth. I de compelled by am to reach this result a series cases this McDe by Cooper cided Court and Court: v. Supreme (2d) Co., vitt 463, 196 (1973), & Street 260 S.C. S.E. 833 Givens (2d) (1983) Structures, Inc., 12, v. Steel 279 S.C. 301 S.E. 545 Co., 466, McLeod v. Carolina 280 S.C. Piggly Wiggly (Ct. 1984). (2d) involve S.E. All three cases claims App. compensation, presents and each the issue of what workers’ an employer prove escape liability compensation, employ based on a misrepresentation ment. ground Cooper, liability
In denied on employer intentionally injured employee misrepresented pre rejected The injury. vious back Industrial Commission reversed, The trial employer appealed. judge defense. employee Court reversed the appealed. judge. According decision of the trial was there finding[s] judge evidence to sustain the trial “ample fraud in appellant guilty securing employ that the was his as to in previous ment false his back through representation not hired him had he employer and that the would have jury Cooper, his condition.” 260 S.C. misrepresented physical however, findings, at 469, 196 Despite at 835. these required the Court also “a causal employer ap connection between the false made representation (2d) at pellant and his Id. subsequent injury.” Ferguson 836. Givens and McLeod are in accord. See also (Ct. R.F. Moore Constr. 1989) (also deciding in accord but somewhat different App. issue). these
Although are, cases are factually different, they my opinion, logically indistinguishable. course, We are, of *6 v. Fowler bound the decisions Court. Canal Ins. (Ct. 1990). App. If an employer is required prove a causal connection be tween a misrepresentation made by for employ ment and injury thereafter suffered the applicant, there is no logical reason to require an insurance company a causal connection between a misrepresentation made by an applicant for life insurance and the subsequent death of the applicant.
For reasons, these I am convinced the Cir- judgment cuit Court must be affirmed. CLARK, Respondent KEY, Phillip Napoli,
Steven John The Pinnacle Inc., Mason, Wood, Inc., Group, Legg, Walker, Defendants, of whom Phillip Key Appellant.
(405 (2d) 599) Supreme Court