The opinion of the Court was delivered by
Mr. Justice Blease.
This was an action upon two policies of life insurance issued by the appellant on the life of Janie B. McLane, the
beneficiary being the respondent, the husband of the insured. The appellant admitted the issuance of the policies, and defended on the ground that they were obtained by the fraud of the insured, participated in by the beneficiary. The trial in the County Court of Richland County resulted in a verdict for the respondent for the full amount claimed.
It is entirely unnecessary to review and state the facts developed by the evidence of the parties, for the appellant does not question that it was proper for the Court to submit the issues involved to the jury for settlement.
The appeal to this Court raises two questions, the first relating to an instruction given by the County Judge to the jury, and the second to certain remarks of an attorney for the respondent in his address to the jury.
The appellant contends that it was error for the Judge to use in his charge this language:
“Now on this proposition of waiver, the law says that if the insured is examined by a physician for the company, that examination is evidence of one of two things; either that the disease did not exist, or that its existence was known about and waived by the insurer.”
In connection with its exception challenging the correctness of the instruction, the appellant has asked, and obtained the leave of the Court for a review of the case of
Wingo v. New York Life Insurance Company,
decided August 25, 1919, reported in 101 Southeastern Reporter at page 653. (This case seems not to have been reported in the South Carolina Reporter. We are unable to find it, and the attorneys in this case have not found it. Since it is a case of some importance, it should be even yet reported. The error in failing to report it may have occurred from the fact that the case came to this Court on two occasions. The first appeal is in 112 S. C., 139, 99 S. E., 436.)
The appellant states that “the
Wingo case
has been understood to hold, and cited to hold, as illustrated by Judge
Whaley’s charge” in this case, “that if the applicant for insurance has been examined by the company’s physician, the company cannot prove fraud by the applicant in procuring the policy, since the examination by the physician' is conclusive (1) that the disease did not exists or (2) that it was waived by the company.” The appellant, as we understand it, takes the position that the
Wingo case
did not go as far as indicated; but, if it did, then it.should be overruled. Say the counsel for the appellant in their argument :
“If Judge Whaley in this case, now on appeal, had charged the jury as fully and completely as did Judge Mauldin (who presided in the
Wingo case),
his charge would have been correct with the
Wingo case
as authority for the instructions, but by restricting his charge to the narrowed proposition, that examination by a company physician is evidence- of
one of two things,
either that the disease did not exist, or that its existence was known about and waived by the insurer without telling the jury that if the physician made a reasonable examination and failed to discover the disease, and such failure was due to the fraud of the applicant, then the plaintiff could not recover, he made reversible error which entitles the applicant (appellant?) to a new trial in order that due consideration may be given by the jury to these important facts in the case.”
After all, the contention of the appellant seems to us to be that the instructions given to the jury by the presiding Judge in the
Wingo case
(second appeal) were correct declarations of the law, and that the charge in this case, complained of, is not in harmony therewith, for the reason that more language, explanatory of what was said, was not used. What the appellant really asks is a strict application of the doctrine of the
Wingo case.
We agree with the appellant in its proposition to the effect that this Court did not say, and did not intend to say, in the
Wingo case,
that the examination of an applicant for insurance, who is afterward accepted by a physician selected
by the insurer, is
conclusive evidence
of one of two things, either (1) that a disease, which would have prevented the policy from being issued, did not exist, or (2) that its existence was known and waived by the insurer. It is our opinion that the Court only intended to say—and in fact it said—that such examination, preceding the acceptance of the applicant, is
some evidence
of one or the other of the two things mentioned, and such evidence is sufficient to carry the case to the jury on the question of waiver, when the insurer pleads fraud in the obtaining of the contract of insurance, based on the concealment from the insurer of some disease in the insured, the knowledge of which if communicated to the insurer would have caused the insurer to decline to enter into the contract. Our understanding of the law, as here announced, we conceive to be entirely harmonious with the principles declared in the
Wingo case.
And so understood, we approve the holdings there made.
In the
Wingo
case, the instructions given by Judge Maul-din contained the same principle announced by Judge Whaley in the charge which the appellant here claims to have been erroneous. In connection with the word “evidence,” and preceding that word, Judge Mauldin used the word
“some.”
In reply to inquiry made of Mr. Wardlaw, appellant’s counsel, who argued, ably and interestingly, the case at the bar of this Court, we ascertained that the appellant did not complain of the failure of the presiding Judge in this cause to use the word “some.” While the matter is rather technical, we are inclined to think that it would have been better if the expression “some evidence” had been used.
It is to be noted that in giving the instruction the Judge did not use the word “conclusive” in speaking of the effect of the evidence as to the examination by the company’s physician. If the Judge had told the jurors that the examination of the physician was
conclusive evidence
of either one or the other of the two things referred to by him, the effect would have been altogether different, and very likely the appellant would have just cause to make complaint.
In addition to the legal principle adverted to, announced by Judge Mauldin in his instructions in the
Wingo case,
he did go further in that connection in explaining to the jury the full effect of the proposition of law which he there announced. He added an instruction to the effect that, if the physician’s failure to discover a disease of the insured was due to the fraud, of the applicant, then the plaintiff could not recover.
So conceding, as we must under the authority of .the
Wingo case,
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The opinion of the Court was delivered by
Mr. Justice Blease.
This was an action upon two policies of life insurance issued by the appellant on the life of Janie B. McLane, the
beneficiary being the respondent, the husband of the insured. The appellant admitted the issuance of the policies, and defended on the ground that they were obtained by the fraud of the insured, participated in by the beneficiary. The trial in the County Court of Richland County resulted in a verdict for the respondent for the full amount claimed.
It is entirely unnecessary to review and state the facts developed by the evidence of the parties, for the appellant does not question that it was proper for the Court to submit the issues involved to the jury for settlement.
The appeal to this Court raises two questions, the first relating to an instruction given by the County Judge to the jury, and the second to certain remarks of an attorney for the respondent in his address to the jury.
The appellant contends that it was error for the Judge to use in his charge this language:
“Now on this proposition of waiver, the law says that if the insured is examined by a physician for the company, that examination is evidence of one of two things; either that the disease did not exist, or that its existence was known about and waived by the insurer.”
In connection with its exception challenging the correctness of the instruction, the appellant has asked, and obtained the leave of the Court for a review of the case of
Wingo v. New York Life Insurance Company,
decided August 25, 1919, reported in 101 Southeastern Reporter at page 653. (This case seems not to have been reported in the South Carolina Reporter. We are unable to find it, and the attorneys in this case have not found it. Since it is a case of some importance, it should be even yet reported. The error in failing to report it may have occurred from the fact that the case came to this Court on two occasions. The first appeal is in 112 S. C., 139, 99 S. E., 436.)
The appellant states that “the
Wingo case
has been understood to hold, and cited to hold, as illustrated by Judge
Whaley’s charge” in this case, “that if the applicant for insurance has been examined by the company’s physician, the company cannot prove fraud by the applicant in procuring the policy, since the examination by the physician' is conclusive (1) that the disease did not exists or (2) that it was waived by the company.” The appellant, as we understand it, takes the position that the
Wingo case
did not go as far as indicated; but, if it did, then it.should be overruled. Say the counsel for the appellant in their argument :
“If Judge Whaley in this case, now on appeal, had charged the jury as fully and completely as did Judge Mauldin (who presided in the
Wingo case),
his charge would have been correct with the
Wingo case
as authority for the instructions, but by restricting his charge to the narrowed proposition, that examination by a company physician is evidence- of
one of two things,
either that the disease did not exist, or that its existence was known about and waived by the insurer without telling the jury that if the physician made a reasonable examination and failed to discover the disease, and such failure was due to the fraud of the applicant, then the plaintiff could not recover, he made reversible error which entitles the applicant (appellant?) to a new trial in order that due consideration may be given by the jury to these important facts in the case.”
After all, the contention of the appellant seems to us to be that the instructions given to the jury by the presiding Judge in the
Wingo case
(second appeal) were correct declarations of the law, and that the charge in this case, complained of, is not in harmony therewith, for the reason that more language, explanatory of what was said, was not used. What the appellant really asks is a strict application of the doctrine of the
Wingo case.
We agree with the appellant in its proposition to the effect that this Court did not say, and did not intend to say, in the
Wingo case,
that the examination of an applicant for insurance, who is afterward accepted by a physician selected
by the insurer, is
conclusive evidence
of one of two things, either (1) that a disease, which would have prevented the policy from being issued, did not exist, or (2) that its existence was known and waived by the insurer. It is our opinion that the Court only intended to say—and in fact it said—that such examination, preceding the acceptance of the applicant, is
some evidence
of one or the other of the two things mentioned, and such evidence is sufficient to carry the case to the jury on the question of waiver, when the insurer pleads fraud in the obtaining of the contract of insurance, based on the concealment from the insurer of some disease in the insured, the knowledge of which if communicated to the insurer would have caused the insurer to decline to enter into the contract. Our understanding of the law, as here announced, we conceive to be entirely harmonious with the principles declared in the
Wingo case.
And so understood, we approve the holdings there made.
In the
Wingo
case, the instructions given by Judge Maul-din contained the same principle announced by Judge Whaley in the charge which the appellant here claims to have been erroneous. In connection with the word “evidence,” and preceding that word, Judge Mauldin used the word
“some.”
In reply to inquiry made of Mr. Wardlaw, appellant’s counsel, who argued, ably and interestingly, the case at the bar of this Court, we ascertained that the appellant did not complain of the failure of the presiding Judge in this cause to use the word “some.” While the matter is rather technical, we are inclined to think that it would have been better if the expression “some evidence” had been used.
It is to be noted that in giving the instruction the Judge did not use the word “conclusive” in speaking of the effect of the evidence as to the examination by the company’s physician. If the Judge had told the jurors that the examination of the physician was
conclusive evidence
of either one or the other of the two things referred to by him, the effect would have been altogether different, and very likely the appellant would have just cause to make complaint.
In addition to the legal principle adverted to, announced by Judge Mauldin in his instructions in the
Wingo case,
he did go further in that connection in explaining to the jury the full effect of the proposition of law which he there announced. He added an instruction to the effect that, if the physician’s failure to discover a disease of the insured was due to the fraud, of the applicant, then the plaintiff could not recover.
So conceding, as we must under the authority of .the
Wingo case,
that the proposition of law given to the jury by the trial Judge in this case was absolutely correct, the whole matter to be disposed of by the appellant’s exception revolves around the failure of the presiding Judge to go more at length in the instructions he gave. In other words, was the failure to charge more fully at that particular time, and in connection with the charge given, reversible error ?
Under our view, we are forced to answer the question stated in the negative. An examination of the entire charge, including the requests submitted by the appellant, which were charged, convinces us that the presiding Judge fully covered the law as to appellant’s defense of fraud and the respondent’s claim of waiver, and these instructions contained correct legal principles. The jury were told in the general charge that, if the appellant established by the preponderance of the evidence its defense of fraud, the verdict should be in favor of the appellant. In the requests submitted by the appellant, this phase of the. law was sufficiently covered. We direct particular attention to this language in the charge:
“That if you find from the evidence in this case that the answers made by the wife of the plaintiff in the application were false and material to the risk incurred by the insurer, and were made with intent to deceive the company, and the company relied on them to its injury, then you would have to find for the defendant unless waiver was shown by the plaintiff.”
The main difference between the charge of Judge Whaley in this case and the charge of Judge Mauldin in the
Wingo case
is that Judge Whaley charged the jury the last language we have quoted prior to the instruction which the appellant challenges, while in the
Wingo case
Judge Mauldin charged as to fraud on the part of the insured immediately following his instructions as to the examination made by the company’s physician. It was not incumbent upon the trial Judge in this case to use the identical language used by Judge Mauldin, or to follow the former’s manner of charging a jury. As Judge Whaley well told the jury, he could not “give the law in one breath.” The charge of a trial Judge must, of course, be considered as a whole. We cannot take an isolated excerpt from a " charge and decide that it was erroneous, without considering the bearing upon it of other language in the charge.
Crawford v. Davis,
136 S. C., 95, 134 S. E., 247;
Nettles v. Nettles,
138 S. C., 318, 136 S. E., 297. Many, many other cases sustain this principle. This wholesome doctrine should not be interfered with in the slightest for to do so would but bring disorder in the administration of justice. The language of Mr. Hammond, one of the attorneys
for the respondent, in his argument to the jury, of which the appellant complains, was as follows :
“I think in the name of insurance and fair dealing in South Carolina today, especially in Richland County, that it would be a sad time when a man comes into Court having paid his premiums for his policy, having had what is called a sacred contract, and it falls down on him. As I was saying when they broke me off awhile ago, that if this case is decided for the defendant, every policy in South Carolina will be weakened in its validity.”
In response to objection on the part of appellant’s attorney to the use of that language, the County Judge ruled, in effect, that he could not stop counsel from “drawing certain inferences” from the evidence in the case.
Attorneys in making arguments to juries should, of course, try always to confine themselves to the evidence adduced in the trial. It is very difficult, as heretofore repeatedly held by this Court, to draw the line between proper and improper argument. We must leave the control of the arguments of counsel very much to the discretion of the trial Judge, who is on the scene of action and in much better position than we are to judge as to what is improper argument. While the language of respondent’s counsel was pretty strong, we are not prepared to say that the County' Judge committed an abuse of the discretion allowed him because of his refusal to reprimand the attorney for making the statements. It is not to be overlooked that the appellant in this case made the very grave and serious charge against the respondent, who was the client of the attorney, that he had been guilty of a most reprehensible fraud in procuring insurance on the life of his dying wife for the purpose of obtaining money from the appellant. More than that, the appellant <?rai charged the dead wife of the respondent, who was not there to speak for herself, of participating in the respondent’s fraudulent scheme. In making charges of this character, the appellant and its counsel should have expected the respondent and his counsel not to be in the best of humor. Charges of gross misconduct against a good lawyer’s client may be expected to bring forth from that lawyer some vigorous language. Under these circumstances, the language used by the respondent’s attorney may not have been altogether out of place. And, certainly, the judgment below should not be reversed on that ground.
The judgment of this Court is that the judgment of the lower Court be, and the same is hereby, affirmed.
Mr. Chief Justice Watts and Mr. Justice Stabler concur.
Mr. Justice Carter concurs in result.