The opinion of the court was delivered by
Mr. Justice McIver.
This was an action to recover the amount of two policies of insurance, issued by the defendant company, on the life of George L. Dial, and payable on his death to the plaintiff, his wife, within ninety days after notice and proof of the death of the said George L. Dial. The defendant, by its answer, set up two defences: First, a general denial of all the allegations of the complaint. Second, that prior to the death of said George L. Dial he had forfeited both of said policies by failing to pay a mortality assessment — No. 45 — -of which notice was given to him on the 1st October, 1885, which became payable within thirty days from that date. The plaintiff offered testimony tending to shotv the corporate-capacity of defendant; the genuineness of the policies; that plaintiff was the wife of George L. Dial at the time the policies were issued, and as such named as payee therein; that George L. Dial died from natural causes on the 16th February, 1886; that a few days afterwards notice was given to the local agent of the company and afterwards to the secretary, and the necessary blanks for making.out proof of death requested, which was declined upon the ground that the policies had been forfeited by the failure to pay mortality assessment No. 45 in October, 1885.
The testimony of Stuart, the president, and Edmondson, the secretary of the company, taken by commission, was read by the plaintiff, when the former in answer to the second cross-interrogatory, which was in the stereotyped form — “State anything within your knowledge tending to the benefit of the defendant corporation” — proceeded to state something that appeared on the books of the company going to show that the policies in question had been forfeited, and the other witness, Edmondson, in answer to [577]*577the 12th direct interrogatory in the same form, as well as to the 2nd cross-interrogatory in like form, stated that it appeared from the books of the company that the policies had been forfeited. These answers were ruled out as not responsive to the interrogatories, and also upon the ground that the books themselves were the best evidence.
At the close of plaintiff’s testimony the defendant moved for a non-suit, upon the ground that the plaintiff had failed to introduce any evidence to establish all the material allegations of the complaint. This motion was refused, and after the testimony on behalf of the defendant had been submitted, the case went to the jury under the charge of the Circuit Judge, which, as well as all the testimony, is fully set out in the “Case.” The jury found a verdict in favor of the plaintiff, and the defendant submitted a motion for a new trial upon the ground that the verdict was contrary to the weight of the evidence and the charge of the judge, which motion was likewise refused, and judgment having been entered on the verdict, the defendant appeals upon numerous grounds (thirty-one in number), which are set out in the record.
The first exception, raising the question as to the admissibility of Christy’s testimony as to the custom of the Columbia agency, was not pressed in the argument here, and was, we suppose, abandoned; but whether abandoned or not, it cannot be sustained, for the reason (if there were no other) that it was wholly immaterial, as the witness said he did not know what the custom was.
The second and third exceptions, relating to the exclusion of the answers of Stuart and Edmondson to certain interrogatories and cross-interrogatories, will be considered together. It seems to be true, as respondent’s counsel contends, that these answers were afterwards allowed to come in when Edmondson was put upon the stand as a witness for the defence, under some alleged previous understanding between the counsel in the case; yet as this testimony stood excluded at the time the motion for a non-suit was made, it will be necessary to consider its competency. The object of this testimony was to show that mortality assessment No. 45 had been duly made, and that George L. Dial having failed to pay the same within the required time, the policies of insurance sued upon had been forfeited; and this it was proposed to show — not [578]*578by the books containing these entries — but by the testimony of these officers that they had seen such entries on the books of the company. We agree with the Circuit Judge that the books themselves were the highest evidence, and therefore the secondary evidence was incompetent.
But it is contended by appellant that the plaintiff had waived this by examining these witnesses as to what appeared upon the books. We do not find that any question was asked the witness, Stuart, as to what appeared on the books of the company, though, in the fifth interrogatory, addressed to the witness, Edmondson, he was asked to refer to the books of the company and give certain information as to a wholly different matter from that which these witnesses undertook to speak of, from the looks, in reply to the general questions usually found in interrogatories prepared for the examination of witnesses by commission. It does not seem to us that the interrogatories in chief submitted to either of these witnesses were of such a character as to make it competent for such witnesses to testify as to what appeared upon the books of the company in reference to mortality assessment No. 45. It will be observed that the objection was — not to the interrogatories, which seem to have been wholly unobjectionable, but the objection was to the answers, and therefore, of course, no objection could have been previously interposed; if, indeed, this was necessary under the case of McBride v. Ellis, 9 Rich., 269; 67 A. D., 553. We do not base our conclusion upon the ground that the answers excluded were not responsive to the interrogatories, or rather that they related to matters not referred to either in the interrogatories in chief or the cross-interrogatoi’ies (for the rule in this State is,- that a party may, by a cross-examination, bring out new matter not before referred to, and may, in fact, prove anything essential to his case provided it is otherwise competent, Killer v. McIlwain, 16 S. C., 550; Dillard v. Samuels, 25 Id., 318); but we rest our conclusion upon the ground that the books were the best evidence, and the testimony in question was properly excluded as secondary.
The fourth exception raises the question as to the propriety of refusing the motion for a non-suit. The inquiry is whether there was any testimony adduced tending to sustain all the material [579]*579allegations of the complaint. It seems to us that there was, and hence the non-suit was properly refused. It is true that under the charter and by-laws of the company the amounts secured by the policies were not payable until the expiration of ninety days after notice and proof of the death of the assured had been furnished to the company, and therefore, as a general rule, evidence that such notice and proof of loss had been furnished to the company would be necessary to maintain such an action as this. It is also true that while notice of the death of George L.
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The opinion of the court was delivered by
Mr. Justice McIver.
This was an action to recover the amount of two policies of insurance, issued by the defendant company, on the life of George L. Dial, and payable on his death to the plaintiff, his wife, within ninety days after notice and proof of the death of the said George L. Dial. The defendant, by its answer, set up two defences: First, a general denial of all the allegations of the complaint. Second, that prior to the death of said George L. Dial he had forfeited both of said policies by failing to pay a mortality assessment — No. 45 — -of which notice was given to him on the 1st October, 1885, which became payable within thirty days from that date. The plaintiff offered testimony tending to shotv the corporate-capacity of defendant; the genuineness of the policies; that plaintiff was the wife of George L. Dial at the time the policies were issued, and as such named as payee therein; that George L. Dial died from natural causes on the 16th February, 1886; that a few days afterwards notice was given to the local agent of the company and afterwards to the secretary, and the necessary blanks for making.out proof of death requested, which was declined upon the ground that the policies had been forfeited by the failure to pay mortality assessment No. 45 in October, 1885.
The testimony of Stuart, the president, and Edmondson, the secretary of the company, taken by commission, was read by the plaintiff, when the former in answer to the second cross-interrogatory, which was in the stereotyped form — “State anything within your knowledge tending to the benefit of the defendant corporation” — proceeded to state something that appeared on the books of the company going to show that the policies in question had been forfeited, and the other witness, Edmondson, in answer to [577]*577the 12th direct interrogatory in the same form, as well as to the 2nd cross-interrogatory in like form, stated that it appeared from the books of the company that the policies had been forfeited. These answers were ruled out as not responsive to the interrogatories, and also upon the ground that the books themselves were the best evidence.
At the close of plaintiff’s testimony the defendant moved for a non-suit, upon the ground that the plaintiff had failed to introduce any evidence to establish all the material allegations of the complaint. This motion was refused, and after the testimony on behalf of the defendant had been submitted, the case went to the jury under the charge of the Circuit Judge, which, as well as all the testimony, is fully set out in the “Case.” The jury found a verdict in favor of the plaintiff, and the defendant submitted a motion for a new trial upon the ground that the verdict was contrary to the weight of the evidence and the charge of the judge, which motion was likewise refused, and judgment having been entered on the verdict, the defendant appeals upon numerous grounds (thirty-one in number), which are set out in the record.
The first exception, raising the question as to the admissibility of Christy’s testimony as to the custom of the Columbia agency, was not pressed in the argument here, and was, we suppose, abandoned; but whether abandoned or not, it cannot be sustained, for the reason (if there were no other) that it was wholly immaterial, as the witness said he did not know what the custom was.
The second and third exceptions, relating to the exclusion of the answers of Stuart and Edmondson to certain interrogatories and cross-interrogatories, will be considered together. It seems to be true, as respondent’s counsel contends, that these answers were afterwards allowed to come in when Edmondson was put upon the stand as a witness for the defence, under some alleged previous understanding between the counsel in the case; yet as this testimony stood excluded at the time the motion for a non-suit was made, it will be necessary to consider its competency. The object of this testimony was to show that mortality assessment No. 45 had been duly made, and that George L. Dial having failed to pay the same within the required time, the policies of insurance sued upon had been forfeited; and this it was proposed to show — not [578]*578by the books containing these entries — but by the testimony of these officers that they had seen such entries on the books of the company. We agree with the Circuit Judge that the books themselves were the highest evidence, and therefore the secondary evidence was incompetent.
But it is contended by appellant that the plaintiff had waived this by examining these witnesses as to what appeared upon the books. We do not find that any question was asked the witness, Stuart, as to what appeared on the books of the company, though, in the fifth interrogatory, addressed to the witness, Edmondson, he was asked to refer to the books of the company and give certain information as to a wholly different matter from that which these witnesses undertook to speak of, from the looks, in reply to the general questions usually found in interrogatories prepared for the examination of witnesses by commission. It does not seem to us that the interrogatories in chief submitted to either of these witnesses were of such a character as to make it competent for such witnesses to testify as to what appeared upon the books of the company in reference to mortality assessment No. 45. It will be observed that the objection was — not to the interrogatories, which seem to have been wholly unobjectionable, but the objection was to the answers, and therefore, of course, no objection could have been previously interposed; if, indeed, this was necessary under the case of McBride v. Ellis, 9 Rich., 269; 67 A. D., 553. We do not base our conclusion upon the ground that the answers excluded were not responsive to the interrogatories, or rather that they related to matters not referred to either in the interrogatories in chief or the cross-interrogatoi’ies (for the rule in this State is,- that a party may, by a cross-examination, bring out new matter not before referred to, and may, in fact, prove anything essential to his case provided it is otherwise competent, Killer v. McIlwain, 16 S. C., 550; Dillard v. Samuels, 25 Id., 318); but we rest our conclusion upon the ground that the books were the best evidence, and the testimony in question was properly excluded as secondary.
The fourth exception raises the question as to the propriety of refusing the motion for a non-suit. The inquiry is whether there was any testimony adduced tending to sustain all the material [579]*579allegations of the complaint. It seems to us that there was, and hence the non-suit was properly refused. It is true that under the charter and by-laws of the company the amounts secured by the policies were not payable until the expiration of ninety days after notice and proof of the death of the assured had been furnished to the company, and therefore, as a general rule, evidence that such notice and proof of loss had been furnished to the company would be necessary to maintain such an action as this. It is also true that while notice of the death of George L. Dial was given to the company soon after that event occurred, there was no evidence that any proof of such death was furnished to the company before this action was commenced; but there was evidence that application had been made to the company within due time for such blanks as had been prescribed for the purpose of making out such proof, which the by-laws required the company to furnish, and that such application had been refused — not upon the ground that such application had not been made within the prescribed time, but solely upon the ground that the policies had been forfeited by the failure of George L. Dial to pay mortality assessment No. 45, within the prescribed time.
The question, therefore, is whether such refusal on the part of the company was a waiver of the required proof of death, and dispensed with the necessity for the plaintiff to show a compliance with this condition precedent to a recovery. The case of Knickerbocker Life Insurance Company v. Pendleton, (112 U. S., 696), with the authorities therein cited, shows conclusively that a distinct refusal to pay and a denial of liability, upon the ground that the policy had lapsed and was forfeited, is a waiver of the condition precedent requiring proof of death; and this doctrine seems to have been recognized in this State in Charleston Insurance Trust Company ads. Neve, 2 McMull., 237, and Madsden v. Phoenix Fire Insurance Company, 1 S. C., 24. When, therefore, the company was notified of the death of Dial, and the necessary blank forms to make out proof of death were applied for and refused, upon the ground that the policies had been forfeited, this was a waiver of the required proof, or at least was sufficient evidence of such waiver as rendered it necessary to submit the question to the jury.
[580]*580If it should be contended that in order to maintain this action, it was necessary for the plaintiff to prove affirmatively the truth of all the answers to the questions contained in the application, we would say, in the language of Mr. Justice Miller, in P. & A. Life Insurance Company v. Ewing, 92 U. S., 378 : “The number of the questions now ashed of the assured, in every application for a policy, and the variety of subjects, and the length of time which they cover, are such that it may be safely said that no sane man would ever take a policy if proof to the satisfaction ■of a jury of the truth of eveiy answer were made known to him to be an indispensable prerequisite to payment of the sum secured; that proof to be made only after he was dead, and could render no assistance in furnishing it. On the other hand, it is no hardship that, if the insurer knows or believes any of these statements to be false, he shall furnish the evidence on which that knowledge or belief rests.” We do not think, therefore, that the burden of proving the truth of these answers rested on the plaintiff. On the contrary, we think that the correct rule is as stated in Continental Life Insurance Company v. Rogers (119 Ill., 474; S. C., 59 Am. Rep., 810): “That it is not necessary for the plaintiff, in an action on the policy, to either allege or prove such matters as appear in the application only. To be availed of as a defence, without regard to whether they are warranties or representations merely, their falsity, or breach by the assured, must be set up and proved by the defendant as matter of defence.” See also what is said by Mr. Justice McGowan in the recent case of Roach v. Kentucky Mutual Security Fund Company, 28 S. C., 431, and 6 S. E. Rep., 286.
Exceptions 5 to 9 inclusive, in so far as they relate to the declarations of George L. Dial, may be considered together. These declarations were clearly incompetent. Neither he nor any representative of his was a party to the action. Besides, the authorities show' that his declarations, in a case like this, are incompetent. See Bliss on TAfe Insurance, section 383, and the other authorities cited by counsel for respondent.1 As to the seventh exception, it seems that the testimony there alluded [581]*581to was eventually admitted, and besides, the by-laws expressly-required a written notice. So, too, as to the testimony of Dr. Gaubert, alluded to in exceptions 8 and 9, it was admitted, except to state the declarations of Dial.
As to exception 10, it is only necessary to say that a motion for a continuance is a matter addressed to the discretion of the Circuit Judge, and, as has been often held, its refusal affords no ground for appeal. Besides, the reason for the motion seems to have been removed when the plaintiff’s counsel consented that the testimony in question might be offered as a part of the evidence for defendant.
Exceptions 11 to 17 inclusive may be considered together. The testimony, the exclusion of which is there complained of, was of facts which appeared, or should have appeared, on the books of the company, and they constituted the highest evidence of such facts. We do not understand, as seems to be intimated in the 17th exception, that the witness was forbidden to testify to any fact within his own knowledge, not derived from an examination of the books.
Exceptions 18 to 21 inclusive raise the question as to the competency of the testimony offered to show the number of South Carolina policy holders who had paid assessment No. 45, and to whom notice of an extra assessment in November, 1885, had been sent. We cannot see the relevancy of such testimony. The question here was whether Dial had forfeited his policy by a failure to pay mortality assessment No. 45, and it mattered not how many or how few of the other policy holders liad paid or neglected to pay such assessment. Nor could the mailing of notice of the November assessment to other policy holders affect that question.
Exception 22 imputes error in the charge to the jury that the certificate of membership was an agreement between plaintiff and defendant. Eor a proper understanding of this, as well as subsequent exceptions hereafter to be noticed, imputing error to the Circuit Judge in his charge to the jury, we think it due to his honor that the entire charge, which is too long to be inserted here, should be incorporated into the report of this case. In regard to this particular exception, we do not see that the charge [582]*582was as the exception seems to intimate; and even if it was, while it may have been immaterial, we do not see that it was erroneous. The contract sued upon was an agreement by the defendant to pay to the plaintiff a certain sum of money on a certain contingency, and in that sense the agreement was between plaintiff and defendant; and this was manifestly all that the charge could properly be construed to mean.
As to the 23d exception, it seems to us clear that there is no foundation for it, as it was unquestionably the duty of this corporation to make the mortality assessments, and we do not understand how it could do so except through its board of directors, or some committee charged with the management of its affairs.
The 24th exception raises the question of the burden of proof, where the defendant relies upon a forfeiture as a defence. This is unquestionably an affirmative defence, and upon well settled principles the burden of proof is upon him who affirms.
We do not understand the charge to have been, as intimated in exceptions 25 and 26, rendering it necessary that a notice of a mortality assessment should contain a complete financial exhibit of the affairs of the company. On the contrary, it seems to us that the charge could only be understood to mean that the notice must contain a statement of the fact which rendered the mortality assessment necessary, to wit: the death of one or more of the members or policy holders, giving the amount of the pro rata assessment, and that such a notice “furnishes prima facie evidence of the correctness of it.”
Exception 27 complains of error in charging the jury that it was for the jury to say, as matter of fact, whether defendant had waived the forfeiture for non-payment of mortality assessment No. 45, within the prescribed time. This exception, as we infer from appellant’s argument, is based upon the ground that there was no evidence of any waiver by the company, and that even if there wTas some evidence tending to show a waiver by the local agent, the company could not be bound by it. An examination of the charge will show that the .Circuit Judge particularly instructed the jury that nothing done by the local agent, tending to show a waiver, would be binding on the company unless the company subsequently ratified or approved what was done by the [583]*583local agent; and he went on to instruct them still more particularly that this was so in this case, because Dial had accepted his certificate of membership, “with the distinct understanding that no one was authorized to make such waiver except the president and secretary of the company; but notwithstanding the fact that the company has imposed that as a condition of acceptance of this certificate, of course, they could waive it. It is for you to say, as matter of fact, whether or not they have waived it.” That this was strictly in accordance with law may be seen by reference to the cases of Insurance Company v. Norton, 96 U. S., 234, and Insurance Company v. Eggleston, Ibid., 572.
There was no error in refusing to charge the request which constitutes the basis of exception 28, without the qualification found in the charge. If the request had been, “That in order to recover the plaintiff must prove the material allegations of the complaint,” it could not, and probably would not, have been refused; for the judge did practically charge the jury that the plaintiff could not recover unless she established all the material allegations of her complaint, but that so far as there were any allegations in the complaint which were not essential to her case, it was of no consequence whether they were proved or not.
The same remark may be made in reference to the requests which constitute the basis of exceptions 29 and 30. They could not properly be charged without the qualification found in the charge, as that would have ignored one of the main questions in the case, to wit: whether the forfeiture had been waived.
In reference to the last exception, not numbered, it is only necessary for us to say that we have been unable to discover wherein the verdict of the jury was contrary to the judge’s charge. The verdict turned upon questions of fact properly submitted to the jury.
The judgment of this courtis, that the judgment of the Circuit Court be affirmed.