Suggs v. New York Life Ins. Co. , 174 S.C. 1 ( 1934 )

October 9, 1934. The opinion of the Court was delivered by The facts out of which this action arose, as well as the questions involved in the appeal, are fully set out in the opinion of Mr. Justice Bonham, and will not be restated here.

I think that Judge Townsend properly submitted the case to the jury. As indicated by him, in refusing defendant's motion for a directed verdict, it was for that body to say, under the evidence, whether the answers of Suggs to the questions asked in the application for insurance were made by him with intent to deceive and defraud the company.

In Johnson v. New York Life Insurance Company, 165 S.C. 494,164 S.E., 175, 177, the Court said: "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 ofthe application containing the answers alleged to be false isnot conclusive. Huestess v. Insurance Co., 88 S.C. 31,70 S.E., 403." (Italics added.)

In that case, Johnson stated in his application that he did not drink spirits or other intoxicants in any quantity at all, and that he had taken only an occasional drink in the past. The undisputed testimony, as stated in the opinion, disclosed that, during the five years immediately preceding the signing of the application, the insured had been treated by his physician 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 doctor thought it would ruin his health. The Court held: "Under the circumstances of this case, we do not see how any reasonable inference as to the applicant's intent in making his answer to the questions under consideration could be drawn from the undisputed facts other than that he deliberately intended to deceive the company and thereby procure the insurance."

I do not think that it can be said, from an analysis of the testimony in the case at bar, that no inference can be drawn from the evidence other than that Suggs "deliberately intended to deceive the company and thereby procure the insurance."

Dr. Neil, a witness for the defendant, testified that he had examined Mr. Suggs as far back as 1928 and found that he had an enlarged thyroid gland, and that there were present the attendant symptoms of that trouble, such as too rapid action of the heart and high blood pressure; that he told him he should have the gland removed, as its condition might affect his health; that in 1930 he attended Mr. Suggs for acute bronchitis, but did not then notice any of the conditions which were present in 1928; that after the insured was operated on by Dr. Benizer in 1932, the witness called at his home frequently and found that his heart action was normal and his blood pressure practically so; that he stated in the proofs of death that the insured had died from angina pectoris, but that he desired to change that to thrombosis of the coronary artery, which disease is slightly different from that of angina. He further testified that Mr. Suggs recovered entirely from his attack of bronchitis, and that the witness would have recommended him for insurance after the removal of the goiter, upon "a reasonable observation"; and he did not think that "the goiter trouble" caused the death of the insured.

Dr. McGill stated that he made an examination of Mr. Suggs on June 21 and 22, 1931, about three weeks before the application for insurance "was finished up," the patient being under the impression that he had indigestion; that from his diagnosis the witness concluded that the trouble was hyperthyroidism, "a condition of the result of the disease of the thyroid gland"; that he had rapid heart action and high blood pressure, both of which were symptoms of the trouble; and that he told the patient about his heart action but did not recall that he said anything to him concerning his thyroid condition.

Dr. Benizer, witness for the plaintiff, testified that he specialized in goiter work; that Mr. Suggs came to him on April 3, 1932 — which was about eight months after the policy of insurance was issued — and that he found his trouble to be hyperthyroidism, with the attendant symptoms of fast and irregular heart, high blood pressure, loss of weight, etc.; that he removed the goiter, after which there was a rapid improvement, the various symptoms mentioned disappearing, his blood pressure going down to 140 and his pulse down to 80; that he was dismissed from the hospital in five days after the operation, but returned three weeks later to be looked over; that it was found that he had made a rapid recovery, his condition being excellent, and witness had every reason to believe that he would soon be well. The doctor further testified that later, about May 16, a little over a month after the operation, he was called to Mr. Suggs and found that "his left lung was filled; he had a temperature about 102. A large part of his left lung, certainly the lower left, was solid. He was having a good deal of trouble with his breathing. And at that time, this was a terminal pneumonia." He also stated that Suggs got that way very suddenly, and that the witness saw no signs or symptoms of such condition when the insured returned to the hospital after the operation.

The plaintiff, wife of the insured, stated that no doctor had been called to her husband from 1928 to 1931, except one time when he had indigestion and another when he had an attack of bronchitis. Also, during the period named, he appeared to be in good health, made no complaint about his physical condition, and attended strictly to his business.

Mr. Patterson, Presbyterian minister, in whose church Suggs was an elder, testified that the insured's reputation for truth, fair dealing, and honesty was good. Two other witnesses testified to the same effect. Also, the agent of the company who took the application for the insurance stated that he had known Mr. Suggs for about five years; that he was president of the Bank of Clover, and apparently attended regularly to his business; that he "looked healthy enough"; that his reputation for truth and honesty in the community was good; and that the witness, so far as he knew, had no reason to change his opinion. Testimony as to the reputation of the deceased for truth and honesty, while objected to, was properly allowed by the Court to go to the jury for their consideration in determining the question of whether the insured by his answers intended to practice fraud upon the company in securing the insurance. Wingov. Life Insurance Company, 155 S.C. 206, 101 S.E., 653;Rogers v. Insurance Company, 135 S.C. 89, 133 S.E., 215, 45 A.L.R., 1172.

In the Johnson case, supra, the following observation is found: "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."

As stated by the Court, there are some "rare cases," such as the Johnson case, where the only reasonable inference to be drawn from the evidence is that the policy was obtained by deceit, but, as also pointed out, the issue of fraud in a case of this kind is usually for the jury, and the mere signing of the application is not conclusive of the question.

Applying these principles to the facts of the case at bar, I see no error in the refusal of Judge Townsend to direct a verdict for the defendant. The evidence does not show that the applicant knew or believed that he was seriously ill, and his reputation for honesty and fair dealing, if the witnesses were to be believed, was never questioned, Undoubtedly, in the light of these facts and circumstances, it was for the jury and not for the Court to determine the issue made.

The judgment below is affirmed.

MR. CHIEF JUSTICE BLEASE concurs.

MR. JUSTICE CARTER concurs in result.

MR. JUSTICE BONHAM and MR. ACTING ASSOCIATE JUSTICE W.C. COTHRAN dissent.