164 S.E. 175 | S.C. | 1932
Lead Opinion
May 16, 1932. The opinion of the Court was delivered by This action was brought by the plaintiff, as co-beneficiary, to recover under a policy of insurance alleged to have been issued by the defendant, New York Life Insurance Company, on the life of Leonard C. Johnson, her husband. Among other defenses, the company set up that the policy was void in its inception on account of fraudulent representations made by the insured to obtain the insurance. At the trial of the case defendant made a motion for a directed verdict on various grounds, one of which was, in effect, that the insured had consulted and been treated for alcoholism by at least two physicians within the five years preceding the date of the application; that, although the insurer was entitled to know this fact, the insured concealed it from the company and its medical examiner; and that such concealment rendered the policy void in its inception. The trial Judge overruled the motion, and the jury rendered a verdict for the plaintiff. Defendant appeals, assigning numerous errors, among them being the refusal to direct a verdict on the ground above set out.
We think the exception raising this point must be sustained. Part II of the application signed by the insured consists of a printed schedule of questions with the answers thereto written by the medical examiner in accordance with *498 information given by the applicant. It contains the following:
"Q. How frequently, if at all, and in what quantity do you drink beer, wine, spirits, or other intoxicants? A. None.
"Q. How frequently, if at all, and in what quantity have you drunk any of them in the past? A. An occasional drink.
"Q. Have you within the last five years any of them to excess? A. No."
There are also questions as to whether insured had ever consulted a physician for, or suffered from, any ailment or disease of the brain, nervous system, heart, blood vessel, lungs, skin, etc., to all of which questions the defendant's answer was "No." Then follows this question: "Have you ever consulted a physician or practitioner for any ailment or disease not included in your above answers?" (There are further inquiries as to the name of the ailment or disease, number of attacks, date, duration, severity, results, and, if within five years, name and address of every physician or practitioner consulted.)
The answer to this question was that insured had suffered one mild attack of influenza, of ten days' duration, in 1918, and that he had been given two treatments with cold vaccine in 1928 and 1929, with good results, by Dr. Ritter.
The next question is: "What physicians or practitioners, if any, not named above, have you consulted or been examined or treated by within the past five years?" (Along with the name and address of any such physician or practitioner, and the date of and reason for consultation, examination, or treatment, and the results.) The answer was "None."
Appellant does not contend that the answers to the medical examiner's questions constituted warranties, but concedes that they were merely representations, and that, in order to avoid the policy, it must be shown that they were fraudulent. In this respect the case differs fromGambrill v. Insurance Co.,
Let us examine the record with reference to these questions. The undisputed testimony shows that, during the five years immediately preceding the signing of the application, the insured had been treated by physicians for alcoholism on ten different occasions, on one of which he was confined to a hospital; that some of such periods of illness would last from one to four weeks; and that he was advised by one of the attending physicians to discontinue the use of alcohol as the physician thought it would ruin his health. It is inconceivable that, under the circumstances, the insured did not know that his answer to the question as to whether he had consulted a physician, etc., was untrue. The case is different in this respect from Rogers v. Insurance Co.,
As to materiality, a representation is material when the insured knows, or has reason to believe, that it will be likely to influence the insurance company either in fixing the amount of premium or in rejecting the risk altogether. Pelzer Manufacturing Co. v. Sun Fire Office,
Finally, the intent with which representations or misstatements of facts are made is a thing that is locked up in the heart and consciousness of the applicant. It may be shown by his express words, or it may be deduced from his acts and the facts and circumstances surrounding the making of the misrepresentations, though on this question the mere signing of the application containing the answers alleged to be false is not conclusive. Huestess v. InsuranceCo.,
No question of waiver or estoppel is here involved, as there is no evidence tending to show that the soliciting agent or any other representative of the insurance company had any knowledge of the facts misrepresented by the applicant.
Attention is directed to the fact that the decision in this case rests solely upon the representations in the application as to the applicant's consultation with and *501 treatment by physicians, and not at all upon the representations as to his drinking intoxicants. Plaintiff's counsel objected to testimony as to insured's drinking, on the ground that the answer contains no allegations of misrepresentations in that respect, and that the company would be limited to the particular misrepresentations pleaded. For the purposes of this appeal that point is conceded, but, in order to establish the materiality or immateriality of the representations as to insured's consultation with and treatment by physicians, it was proper to admit testimony showing the nature and extent of the ailment or disease for which the consultation and treatment were had.
We recognize that, ordinarily, the question of fraud in a case of this kind is for the jury, but we feel that this is one of those rare cases in which the undisputed facts can reasonably give rise to only one inference, namely, that the policy was procured by fraud. The trial Court should have directed a verdict for the defendant on that ground.
Under this view of the case it becomes unnecessary to consider any of the other questions raised by the appeal.
Reversed and remanded, with instructions that judgment be entered up for the appellant under Rule 27 of this Court.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES COTHRAN and BONHAM concur.
Dissenting Opinion
The conclusion reached in the leading opinion in this case that the judgment should be reversed, and the case remanded, with instructions that judgment be entered up for the defendant under Rule 27 of this Court, is based, as I understand it, upon the holding that the insured made false representations in his application for insurance, as to his consultation with and treatment by physicians, and that he made such false representations with the deliberate intention of deceiving the insurance company and thereby procuring the insurance applied for. The provision in the insurance policy *502 bearing on the question involved and to which reference is made reads as follows: "The Contract — The policy and the application therefor, copy of which is attached hereto, constitutes the entire contract. All statements made by the insured shall, in absence of fraud, be deemed representationsand not warranties, and no statement shall avoid the policy or be used in defense to a claim under it, unless it is contained in the written application and a copy of the application is endorsed upon or attached to this policy when issued." (Italics added.)
Under this provision it clearly appears, as stated in the leading opinion and conceded by appellant, that the representations the appellant alleges the insured made in his application for insurance did not constitute warranties, but merely representations, and, under the well-recognized rule, "in order to avoid the policy it must be shown that they (representations) were fraudulent." In the leading opinion it is recognized that, ordinarily, the question of fraud in cases of this nature is an issue for the jury; but it is contended by the writer of that opinion, concurred in by a majority of the members of this Court, that the undisputed facts in this case give rise to only one reasonable inference, namely, that the insurance policy in question was procured by fraud, and for that reason the trial Judge should have directed a verdict for the defendant. I am unable to agree with this view, but think that the trial Judge, his Honor, Judge Sease, properly submitted the issue to the jury, and letting the jury determine from all of the testimony whether the policy was procured by fraud. In order for the defendant to be entitled to a finding by the jury that the policy was procured by fraud, on the ground under consideration, it was incumbent upon the defendant to establish by the greater weight of evidence, not only that the representations made by the insured in his application for the policy were untrue, but that they were fraudulent; that the insured knew that the representations were untrue, and that they were made with *503 the deliberate intention and for the purpose of procuring from the insurance company the policy in question. Failing in this, it was the duty of the jury to find against the defendant on this issue. While it was the duty of the jury in passing upon this issue to consider all of the testimony in the case, that introduced by the plaintiff as well as that offered by the defendant, it must be kept in mind that the charge was made by the defendant against the insured, and the burden of establishing the charge was upon the defendant throughout the trial. It was not incumbent on the plaintiff to prove that the representations in question were true and made with an honest purpose, nor was it incumbent on the plaintiff to prove that the representations, if not true, were nevertheless made under the belief that they were true; but it was incumbent upon the defendant to establish its charge. The charge in question made by the defendant against the insured is summed up in the following language which I quote in substance from the leading opinion: The charge was, in effect "that the insured had consulted and been treated for alcoholism by at least two physicians within the five years preceding the date of the application; that although the insurer was entitled to know this fact, the insured concealed it from the company and its medical examiner; and that such concealment rendered the policy void in its inception."
The answers to questions the defendant alleges the insured made and relied upon to support the above-stated position are set out in the leading opinion. The defendant offered testimony to the effect that the insured had been in consultation with and had been treated by two physicians for alcoholism within the five years preceding the time the application was made. According to my view, this made an issue for the jury on the question involved. In this connection I shall call attention to the fact that the answers referred to as having been made by the insured to the questions propounded or presented by the company's medical examiner *504
were written by the examiner with no other person present. The lips of the insured are closed. He is dead, and, of course, there was no one to testify as to what took place at the time except the company's examiner. Of course, the Court will assume that the medical examiner acted with an honest purpose, but in my opinion the Court should also assume that the insured likewise intended to be honest and truthful in answering the questions propounded or presented to him by the company's medical examiner. There was no testimony offered that tended to show the insured was not a truthful man. In fact, the plaintiff offered testimony that the insured was a truthful man, and this, according to my view, was a fact to be considered by the jury in passing upon the issue presented. Wingo v. New York Life Insurance Co.,
For the reasons above stated I am unable to agree with the conclusion reached in the leading opinion, and, therefore, most respectfully dissent. *506
