Donald v. Metropolitan Life Insurance Co.

I am sorry that I do not agree with the conclusion reached by the Chief Justice in this case. It seems to me that it could have been reasonably inferred from the evidence that the plaintiff's statement with reference to his earnings in the application for insurance was not false; and that the jury so concluded, which was within their province.

The insured's testimony was unequivocal that he was averaging $60.00 per week in earnings from his occupation as president, manager and agent for a small insurance company at the time that the defendant issued the policy to him upon which the suit was brought. To combat this the defendant depended upon the report of operations filed in the office of the State Insurance Commissioner purporting to cover the calendar year 1938 from which the gross premium receipts of plaintiff's little company appeared to be only about $2,800.00. However, plaintiff testified that this report was prepared by a man whom he thought to be connected with the office of the commissioner and it appears that during the first of the trial counsel on both sides also had this erroneous impression; and plaintiff's testimony was to the effect that the report was only for one quarter of the year so that the annual receipts of his company were much more, he said over $5,000.00, out of which he paid losses and operating expenses and pocketed the balance. It is not shown that in the latter he violated any law or established public policy. Weeks v. New York Life Insurance Co., 128 S.C. 223,122 S.E., 586.

As is well said in appellant's brief: "The respondent vigorously denies the accuracy of the foregoing reports, and particularly that for the year 1938, and contends that the 1938 report was for a quarter year only." His testimony in this respect is corroborated by that of an examiner from the office of the commissioner, a witness for the defendant, who testified on cross examination that the report must have been erroneous for it showed less gross receipts than in the former year although more than twice the amount of insurance was in force in 1938.

Under all of the evidence, particularly that above referred to, I think that the most that the defendant was entitled to was a submission of the issue to the jury, which it had under very clear instructions and the verdict was against it. I therefore think that this Court cannot properly pass upon this issue of fact in this, a law case.

The defendant pleaded as an affirmative defense in its answer this alleged misrepresentation on the part of the insured and unquestionably the burden of the proof of the defense in all its several elements was upon the appellant. 29 Am. Jur., 1078, Insurance, Par. 1440. 33 C.J., 107, insurance, Par. 827. A similar situation was presented in Murphyv. National Travelers' Benefit Association, 179 Iowa, 213,161 N.W., 57, 60 L.R.A., 1917-C, 338, and the Court found, upon the question of the direction of verdict for the plaintiff, as the jury did in this case, and said: "It is for the defendant to show that he [the insured] did not [earn the amount stated in his application], and to establish such evidentiary fact of bad faith, falsehood, or deception the proof must be clear, satisfactory, and convincing."

The Georgia case relied upon by appellant and cited in the decision of the Chief Justice, Southern Surety Co., of NewYork, v. Fortson, 44 Ga. App., 329, 161 S.E., 679, involved very different facts from those here present. In it the plaintiff stated in the application that he had no other disability insurance when as a matter of fact he had, and the total benefits accruing from it and from the policy then applied for considerably exceeded his salary, other than which he had no income. Here we have conflicting evidence as to the earnings of the insured, an issue thereabout submitted to the jury and a verdict sustaining his contention that he did have the income which he stated in the application.

As indicated, I think the judgment founded on the verdict of the jury should be affirmed.