The opinion of the Court was delivered by
Mr. Justice Gage.
Action upon two contracts of insurance on the life of Sherman Floyd. The plaintiff is wife of the deceased and beneficiary under the policies. After one mistrial the jury at a subsequent trial found for the plaintiff, and the insurance company has appealed.
These are the major circumstances which make the controversy: The policies of insurance are dated October 31, 1912; the insured died September 6, 1913, and admittedly of diabetes; on November 22, 1913, the company, esteeming that the policies voidable by reason of an untrue statement made by Floyd in his application for insurance, tendered to the beneficiary the premiums which had been paid, and took from her a release from further liability; the plaintiff in return has attacked this release as having been secured Lqr the defendant’s fraud. The two major issues in the Circuit Court and here were and are: (1) Was Floyd’s answer made in the application for the policy so untrue as to avoid that instrument? And (2) was the .release executed by the plaintiff secured from her under circumstances which avoided it? Allied to these two questions are two others, one to the charge and another to a refusal to charge. These major issues are reserved for a later discussion.
There are other minor issues which clog the way, and they will be now first disposed of. Of such there are three: (1) That the defendant had the right to open and close the case; (2) that the defendant was entitled to have a special verdict; 'and (3) that a certain answer of a witness, Quinby, was incompetent.
1
The rule of Court provides that the defendant shall begin and close “where he admits the plaintiff’s 'cause by the plead
ings, and takes upon himself the burden of proof.” The answer nowhere expressly admits the plaintiff’s cause. It neither admits, nor does it deny, the allegations of the complaint. It proceeds immediately “answering both causes of action * * * and as a defense” to set forth new matters constituting a defense to the plaintiff’s case. The answer is made up of four paragraphs. The first refers only to the written application for insurance, and the contents of it. The third is a denial of the truth of the statements made in written application for insurance, and the allegation that when the assured made the application he had diabetes, tuberculosis and other ailments; and so much is pleaded to avoid the policy. The fourth refers only to the before stated agreement of the beneficiary to release the company from liability on the policy. The second paragraph is the only one which makes any remote admission of the plaintiff’s case.’ Let it be reported. That paragraph is made up of three averments, to wit: (1) That the application for insurance was received by the defendants in New York on December 2, 1912, and upon its examination by the defendant it was accepted as true; (2) that the application was amended by the insured by a written request that the policies should take effect as of date of November 7, 1912, instead as of.the date of the application; and (3) that thereupon the applicant and insured “received the said policies which there and then had attached thereto a copy of his application, statements, representations, agreements and answers, and of his said amendment.” The third averment furnishes the only suggestion that the answer admitted the plaintiff’s cause. It is true that therein the defendant admits that the assured received the policies; but the allegation goes further and charges that the reception was qualified by the amended ápplication attached to the policies which worked an avoidance of them. The complaint made no reference to the application, or to the amendment of it. The answer then made not even an indirect admission of the allegation of the
complaint, but alleged matter in qualification of the contract the plaintiff set out. This was clearly not such an admission of the plaintiff’s case as entitled the defendant to open and close.
Kennedy v. Moore,
17 S. C. 464;
Boyce v. Lake,
17 S. C. 481, 43 Am. Rep. 618;
McConnell v. Kitchens, 20
S. C. 430, 47 Am. Rep. 845.
2
The offer by the defendant’s counsel at the trial to admit the plaintiff’s cause came too late; the admission must be by the record.
Johnson v. Wideman,
Dudley 325.
3
The Court was not bound to direct the jury to find a special verdict upon any or all of the issues. The statute directs that the Court may make such direction. Section 32 L, Code. In the cases relied upon by the appellant the Court had so directed, and we only held that the jury was bound to follow the direction.
Fertilizer Co. v. Railroad,
99 S. C. 197, 83 S. E. 36. More than this, the instant action is for the recovery of money only; and in such a case the rendition of a special verdict is in the discretion of the jury. Code, sec. 321.
4
The witness, Quinby, was on the stand for the defendant to prove the circumstances of the release by the insured, set up in the fourth paragraph of the answer. On the cross-examination this occurred:
“Q.
If a verdict should be rendered for Mrs. Floyd, do you think it would be a reflection on you? A. No, sir. Mr. Fumpkin: We move to strike out the last question.”
The witness had on the direct examination testified that he advised Mrs. Floyd, on the evidence presented to him and to her at that interview in the bank, to accept the premium money which had been paid and to surrender the policy. By her reply the plaintiff had characterized that transaction in the bank as a fraud upon her.
The appellant’s counsel says in the brief that Mr. Quinby “has a State-wide reputation for business sagacit3r and integrity.” If that be so, the jury might well have been indhced
to conclude, apart from the objected question and answer, that a verdict for the plaintiff might reflect on the witness’ reputation. And the objected question was put to save Mr. Quinby from that awkward situation. But the objection to the answer assigned in the brief is that it is “opinion evidence.” The answer was directed to the witness’ conscious state—the only way to have ascertained that was out of the witness’ mouth; it is not a matter of opinion, but of knowledge.
We now come to the major issues before stated. The first of them árises out of the single answer made by Floyd to question 10 in the application; and that is the sole act of the applicant upon which the charge of fraud and concealment is predicated in order to avoid the policy. The averment is that Floyd’s answer to that question was untrue. The appellant’s counsel opens his argument on the issues with these words:
“Floyd stated in the medical examinathion (folio 279) that he had not in five years preceding that date (31st of October, 1912) consulted any physician for any ailment or illness.”
As we shall show, that statement which is the main postulate of the argument, is altogether inaccurate.
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The opinion of the Court was delivered by
Mr. Justice Gage.
Action upon two contracts of insurance on the life of Sherman Floyd. The plaintiff is wife of the deceased and beneficiary under the policies. After one mistrial the jury at a subsequent trial found for the plaintiff, and the insurance company has appealed.
These are the major circumstances which make the controversy: The policies of insurance are dated October 31, 1912; the insured died September 6, 1913, and admittedly of diabetes; on November 22, 1913, the company, esteeming that the policies voidable by reason of an untrue statement made by Floyd in his application for insurance, tendered to the beneficiary the premiums which had been paid, and took from her a release from further liability; the plaintiff in return has attacked this release as having been secured Lqr the defendant’s fraud. The two major issues in the Circuit Court and here were and are: (1) Was Floyd’s answer made in the application for the policy so untrue as to avoid that instrument? And (2) was the .release executed by the plaintiff secured from her under circumstances which avoided it? Allied to these two questions are two others, one to the charge and another to a refusal to charge. These major issues are reserved for a later discussion.
There are other minor issues which clog the way, and they will be now first disposed of. Of such there are three: (1) That the defendant had the right to open and close the case; (2) that the defendant was entitled to have a special verdict; 'and (3) that a certain answer of a witness, Quinby, was incompetent.
1
The rule of Court provides that the defendant shall begin and close “where he admits the plaintiff’s 'cause by the plead
ings, and takes upon himself the burden of proof.” The answer nowhere expressly admits the plaintiff’s cause. It neither admits, nor does it deny, the allegations of the complaint. It proceeds immediately “answering both causes of action * * * and as a defense” to set forth new matters constituting a defense to the plaintiff’s case. The answer is made up of four paragraphs. The first refers only to the written application for insurance, and the contents of it. The third is a denial of the truth of the statements made in written application for insurance, and the allegation that when the assured made the application he had diabetes, tuberculosis and other ailments; and so much is pleaded to avoid the policy. The fourth refers only to the before stated agreement of the beneficiary to release the company from liability on the policy. The second paragraph is the only one which makes any remote admission of the plaintiff’s case.’ Let it be reported. That paragraph is made up of three averments, to wit: (1) That the application for insurance was received by the defendants in New York on December 2, 1912, and upon its examination by the defendant it was accepted as true; (2) that the application was amended by the insured by a written request that the policies should take effect as of date of November 7, 1912, instead as of.the date of the application; and (3) that thereupon the applicant and insured “received the said policies which there and then had attached thereto a copy of his application, statements, representations, agreements and answers, and of his said amendment.” The third averment furnishes the only suggestion that the answer admitted the plaintiff’s cause. It is true that therein the defendant admits that the assured received the policies; but the allegation goes further and charges that the reception was qualified by the amended ápplication attached to the policies which worked an avoidance of them. The complaint made no reference to the application, or to the amendment of it. The answer then made not even an indirect admission of the allegation of the
complaint, but alleged matter in qualification of the contract the plaintiff set out. This was clearly not such an admission of the plaintiff’s case as entitled the defendant to open and close.
Kennedy v. Moore,
17 S. C. 464;
Boyce v. Lake,
17 S. C. 481, 43 Am. Rep. 618;
McConnell v. Kitchens, 20
S. C. 430, 47 Am. Rep. 845.
2
The offer by the defendant’s counsel at the trial to admit the plaintiff’s cause came too late; the admission must be by the record.
Johnson v. Wideman,
Dudley 325.
3
The Court was not bound to direct the jury to find a special verdict upon any or all of the issues. The statute directs that the Court may make such direction. Section 32 L, Code. In the cases relied upon by the appellant the Court had so directed, and we only held that the jury was bound to follow the direction.
Fertilizer Co. v. Railroad,
99 S. C. 197, 83 S. E. 36. More than this, the instant action is for the recovery of money only; and in such a case the rendition of a special verdict is in the discretion of the jury. Code, sec. 321.
4
The witness, Quinby, was on the stand for the defendant to prove the circumstances of the release by the insured, set up in the fourth paragraph of the answer. On the cross-examination this occurred:
“Q.
If a verdict should be rendered for Mrs. Floyd, do you think it would be a reflection on you? A. No, sir. Mr. Fumpkin: We move to strike out the last question.”
The witness had on the direct examination testified that he advised Mrs. Floyd, on the evidence presented to him and to her at that interview in the bank, to accept the premium money which had been paid and to surrender the policy. By her reply the plaintiff had characterized that transaction in the bank as a fraud upon her.
The appellant’s counsel says in the brief that Mr. Quinby “has a State-wide reputation for business sagacit3r and integrity.” If that be so, the jury might well have been indhced
to conclude, apart from the objected question and answer, that a verdict for the plaintiff might reflect on the witness’ reputation. And the objected question was put to save Mr. Quinby from that awkward situation. But the objection to the answer assigned in the brief is that it is “opinion evidence.” The answer was directed to the witness’ conscious state—the only way to have ascertained that was out of the witness’ mouth; it is not a matter of opinion, but of knowledge.
We now come to the major issues before stated. The first of them árises out of the single answer made by Floyd to question 10 in the application; and that is the sole act of the applicant upon which the charge of fraud and concealment is predicated in order to avoid the policy. The averment is that Floyd’s answer to that question was untrue. The appellant’s counsel opens his argument on the issues with these words:
“Floyd stated in the medical examinathion (folio 279) that he had not in five years preceding that date (31st of October, 1912) consulted any physician for any ailment or illness.”
As we shall show, that statement which is the main postulate of the argument, is altogether inaccurate. Before setting out question 10 and the answer to- it reference ought to be made to question 9 which preceded it, for question 10 is somewhat corollary to question 9.
Question 9 is as follows:
“9. Have you ever had or suffered from any of the following diseases ? * * * A. Of the brain or nervous system? B. Of the heart or lungs? C. Of the stomach or intestines, liver, kidneys or bladder? D. Of the skin, middle ear, or eye? E. Rheumatism, gout or syphilis?” (The italics have been supplied.)
To each of these applicant answered, “No,” and the exceptions and argument have not questioned the truth of the answers. They each stand admittedly true.
Question 10 is as follows: “10. Have you consulted any physician for any'ailment or illness
not mentioned above?”
(The italics are supplied.)
The answer was, “No,” and that is the answer averred to be untrue.
The question is not directed to inquire if the applicant had suffered from any disease; it is not directed to inquire if the applicant had consulted any physician for any ailment or disease; it is directed to inquire if he had consulted any physician, and about an ailment or illness not mentioned in question 9. The burden, therefore, was on the defendant to prove: (1) That Floyd had consulted a physician; (2) 'that it was about an ailment or illness of his; and (3) that such ailment or illness was not one of those mentioned in question 9.
5
The testimony relied on to falsify Floyd’s answer to question 10 is that of Drs. Briggs and Townes. The testimony of those witnesses only shows by inference that Floyd “consulted” them at all. They testified that they were called to see Floyd, and that they diagnosed his ailment to be diabetes, and that they treated him for that disease. It is conceded on both sides that Floyd died of that disease. The doctors did not testify that they definitely told Floyd what his ailment was, and there is no evidence that he knew the fact. But the defendant had to go further ;■ it had to prove that diabetes was not a disease mentioned in question 9. There is not a shred of testimony to prove that fact. Indeed it may be that as a matter of medical science diabetes is a disease of the liver, and if that be so, then Floyd’s answer to question 10 was strictly true. At all events, the defendant had to show that diabetes was not an ailment about which Floyd had answered to question 9. Our opinion, therefore, is that there was no testimony tending to show that Floyd’s answer to question 10 was untrue. That being so, we need not go into that nebulous issue of law, which has been hotly contested at the bar, and
which is whether answers by the applicant are representations or warranties.
6, 7
The next and second major issue arises out of the procurement by the defendant from the beneficiary of the policy of insurance for cancellation. The issue we have just decided settles the second major issue in large measure. The beneficiary had a good contract for $2,000; she surrendered that to the defendant’s agent in a bank at Graniteville for $91.55, the aggregate premiums, and interest on them, which the company had already received from Floyd. And the surrender was made upon the
ex parte
statement to Mrs. Floyd by the company’s agent, Garrison:
“That on the 31st of October, 1912, Sherman Floyd had presented himself to the company and applied for a policy of insurance, making declarations before the medical examiner, which were recorded in the application, that he had not suffered from any disease during the past five years; that he had not" been treated by or consulted a physician during the past five years; that he had not met with or had suffered from an accident during the past five years.”
The questions and answers we have before quoted and discussed are conclusive that this statement of the facts by the agent, Garrison, was definitely incorrect. And the release by the beneficiary must fall with the incorrect statement which procured it. At all events, the validity of the release as of the policies were under all the circumstances issues for the jury, and not for the Court.
There is now no need to discuss the issues made by exceptions 3, 4, 5 and 8; they have been dissipated by that which we have decided. We find it unnecessary, too, to consider the plaintiff’s additional grounds.
The judgment below is affirmed.
Messrs. Justices Hydrick, Watts and Fraser concur.
Mr. Chief Justice Gary concurs in the result.