Brown v. Volunteer State Life Ins. Co. , 212 S.C. 537 ( 1948 )

Respondent earnestly contends in his petition for a rehearing that we have reviewed the evidence and reached factual conclusions different from those found by the jury and trial Judge, contrary to Article 5, Section 4, of the Constitution. It is true that under this constitutional provision we are not at liberty in equity cases to review the findings of fact which are "settled by a jury and the verdict not set aside", by the trial Judge, where there is any evidence supporting such factual conclusions. But in this case there was no proof either of mistake on the part of the insured or of fraud and deceit on the part of appellant. Hence the question passed upon by us was not the sufficiency of the evidence but whether there was not the to establish the essential elements of a cause of action for reformation. In Aiken PetroleumCo. v. National Petroleum Underwriters of Western Millers Mutual FireInsurance Co. of Kansas City, Missouri, 207 S.C. 236, 36 S.E.2d 380, so strongly relied on by respondent, there was ample evidence to support the verdict of the jury which was accepted and affirmed by the trial judge.

The petition for a rehearing is denied. We have, however, concluded, and the Clerk of this Court is instructed, to delete the following paragraph from the opinion:

"See also, in connection with the opportunity for examination and discovery of the inclusion of the War and Aviation Clause, a long line of cases from this Court, including Whitman v. Seaboard Air Line Ry.,107 S.C. 200, 92 S.E. 861, L.R.A. 1917-F, 717; J.B. Colt Co. v. Britt,129 S.C. 226, 123 S.E. 845; Frierson v. Inter-Ocean Cas. Co.,168 S.C. 178, 167 S.E. 232; and Hood v. Life and Cas. Ins. Co. ofTennessee, 173 S.C. 139, 175 S.E. 76."

This order will be published along with the opinion.