This action by the plaintiff, Mrs. Mamie Cooley, against the defendant, Metropolitan Insurance Company, was commenced in the Court of Common Pleas for Anderson County October 10, 1928, for the purpose of obtaining judgment against the defendant in the sum of $500.00, on a life insurance policy issued by the defendant upon the life of Mrs. Emma Smith, mother of the plaintiff; the plaintiff being named as the beneficiary in the policy. The defendant in its answer denied liability upon grounds to which we shall hereinafter advert. The case was tried before his Honor, Judge W.H. Townsend, and a jury at the December, 1928, term of Court of Common Please for Anderson County. At the conclusion of all the testimony both parties moved for directed verdicts, upon grounds which will be referred to further on in this opinion. His Honor, Judge Townsend, refused plaintiff's motion, for direction of a verdict for the full amount of the policy, $500.00, and interest, but granted the defendant's motion, directing the jury to write a verdict for the plaintiff for the amount of the premium paid, with interest, only, and the jury rendered a verdict as directed for that amount, $17.04. From the ruling and judgment of the Circuit Court, the plaintiff has appealed to this Court, imputing error to his Honor, Judge Townsend, as alleged in the several exceptions which will be included in the report of the case. *Page 294
While there are four exceptions, the principal question involved in the appeal may be stated thus: Under the facts of the case, should the presiding judge have directed a verdict, and, if so, for whom and in what amount?
In its answer the defendant made the following admissions: "That the defendant admits that pursuant to an application made to it on the 15th day of February, 1928, it issued, on March 1, 1928, a policy on the life of Mrs. Emma Smith and admits that said policy was delivered to the plaintiff and the premium paid by her; and defendant further admits that the said Mrs. Emma Smith died within seven days after the issuance of the policy; and that thereafter, the plaintiff surrendered the policy to the defendant and demanded payment to her of the amount of said policy, which demand has been refused."
But the defendant denied liability under the policy for the following alleged reasons, stated in its answer:
"That said policy was issued upon, and subject to, the following conditions, which were made a part of the contract, to-wit: "If (1) the insured is not alive, or is not in sound health on the date hereof; or if (2) before the date hereof the insured has been rejected for insurance by this or any other Company, Order or Association, or has, within two years before the date hereof, been attended by a physician for any serious disease or complaint, or, before said date, has had a pulmonary disease, chronic bronchitis, or cancer or disease of the heart, liver, or kidneys, unless such rejection, medical attention or previous disease is specifically recited in the "Space for Endorsements" on page four in a waiver signed by the Secretary or an Assistant Secretary, * * * then, in any such case, the Company may declare this policy void, and the liability of the Company in the case of any such declaration, or in the case of any claim under this policy, shall be limited to the return of premiums paid on the policy, except in the case of fraud, in which case all premiums will be forfeited to the Company.'" *Page 295
"That in fact, the said Mrs. Emma Smith was not in sound health on the date of the policy, March 1, 1928; that, in fact, she had been attended by a physician for a serious complaint within two years before said date, and before said date had had cancer; that the said Mrs. Emma Smith had suffered with cancer for many months prior to the date of the policy, and within two years prior to said date had been treated by physicians, for said complaint, on numerous occasions and that on the date of said policy the said Mrs. Emma Smith then had cancer and died as a result thereof on March 8, 1928; and that under the terms of the policy the liability of the Company is limited to the return of the premiums paid on the policy.
"That after the death of the said Mrs. Emma Smith, and as soon as the facts hereinabove alleged were ascertained by the defendant it elected to declare, and did declare, the said policy void and tendered to the plaintiff the return of the premiums paid, which tender was refused."
The transcript of record contains the following agreed statement of facts, pertinent to the appeal:
"On February 15, 1928, Mrs. Emma Smith, the insured, was living at the Williamston Cotton Mill at Williamston, S.C., and occupying a part of a house rented by one of her sons. The plaintiff, her daughter, was living with her husband on her husband's farm below Belton, S.C. On that date, A.H. Pruitt, agent for the defendant, was at the plaintiff's home in reference to certain policies of insurance then being taken by the family and it was then proposed that plaintiff insure the life of her mother with the defendant in the sum of Five Hundred ($500.00) Dollars, and plaintiff was informed that where the amount of insurance did not exceed Five Hundred ($500.00) Dollars, no medical examination was necessary. The plaintiff's husband, Will Cooley, paid the premium for six months in advance for the benefit of plaintiff and a receipt was issued as follows: *Page 296
"Received from Will Cooley, Sixteen and 35-100 Dollars, being a deposit of premiums or six monthly premiums on account of Application for Insurance in the Metropolitan Life Insurance Co. made this date. If application is accepted and a policy issued, this sum will be applied towards payment of premiums thereon. If application is rejected, the amount will be returned to the applicant. No obligation is incurred by said Company, by reason of this deposit, unless and until a Policy is issued upon said application, and unless at the date and delivery of said policy the Life proposed is alive and in sound health. Except that if the Life proposed is now in sound health and the amount paid by applicant at the time the application is written is not less than four weekly premiums, or one monthly premium (if a monthly premium policy) and this receipt, detached from the original application, covering such payment, is surrendered to the Company, the Company agrees if the Application is approved at the Home Office in New York, that should death occur prior to the delivery of the Policy it will, nevertheless, pay such amount as would have been due under the policy, if issued. No obligation is assumed by the Company unless the application is so approved and the Life proposed is now in sound health.
"Dated February 15, 1928.
"A.H. Pruitt, Agent."
It also appears from the agreed statement of facts that on the same date, February 15, 1928, the premium money was paid and receipt issued by the agent, A.H. Pruitt. Then Mr. Pruitt, the agent, went to Williamston and had the insured, Mrs. Smith, mother of the plaintiff, sign an application for the policy and sent the same to the defendant Insurance Company. In this application which Mrs. Smith signed, it is stated that "she had never had cancer, was then in sound health, had not been under the care of any physician for three years and had never been under treatment in any *Page 297 dispensary or hospital." On March 1, 1928, the defendant, to which we shall refer as the Insurance Company, issued the policy in question, bearing date March 1, 1928. The policy was forwarded by the Insurance Company to its agent, Mr. Pruitt, for delivery, and it was in his possession for several days when he was informed by the husband of the plaintiff that Mrs. Smith, the insured, was dead, having died nine days after the date of issuance of the policy, the policy having been issued March 1, 1928. The said agent thereupon sent the policy to the Insurance Company with proof of death. The Insurance Company promptly tendered a return of the premium, declared the policy void, and denied liability except for the premium. The Insurance Company later sent the policy to the attorney for the plaintiff at his request.
The respondent calls special attention to the following provision in the policy: "If (1) the Insured is not alive or is not in sound health on the date hereof; or if (2) the Insured has within two years before the date hereof, been attended by a physician for any serious disease or complaint, or, before said date, has had cancer, or disease of the heart, liver or kidneys, then, in any such case, the Company may declare this Policy void and the liability of the Company in the case of any such declaration or in the case of any claim under this policy shall be limited to the return of premiums paid on the Policy."
It appears from the statement of facts contained in the transcript of record that:
"During the Spring and Summer of 1927, Mrs. Emma Smith was living at Belton, S.C. with some of her relatives and during the month of May she consulted Dr. C.H. Young, of Anderson, S.C. in regard to her physical condition. Dr. Young would not tell her what her trouble was but diagnosed her diease as cancer. He referred her to Dr. Frank Wrenn who is an X-Ray expert and Superintendent of the Anderson County Hospital. Dr. Wrenn gave Mrs. *Page 298 Smith X-Ray treatment but did not tell her what her trouble was in view of the fact that her disease was at such a stage of development that there was no chance of curing her and felt that it would be too cruel to advise her of her true condition. Mrs. Smith was not a patient in the hospital but at regular periods during the year of 1927 came from Belton by automobile or by trolley to the hospital for treatment. During the late fall of 1927, she moved to Williamston and worked in the Williamston Cotton Mill and lived in a house which was partly occupied by one of her sons. Dr. W.T. Martin, of Pelzer, S.C. was called to see her on one occasion in January. He diagnosed her trouble as cancer but did not tell her or any of the family what her trouble was. Mrs. Smith became ill the 2nd day of March, 1928, and died as a result of this cancer on the ninth day of March, 1928.
"The plaintiff, by reason of some family estrangement, had not seen her mother during the last six months of her life up to within several days of her death when she learned that she was ill. Neither the plaintiff nor her husband knew that Mrs. Smith was sick or suffering from cancer or in bad health. The son that lived in the same house with Mrs. Smith at Williamston did not know she had cancer or that there was anything abnormal about her health. Mrs. Smith had never been informed that she had cancer up to the time that she took her bed on March 2. There was nothing about her appearance that would lead a layman to conclude that she was not in good health. The Insurance Company did not know that Mrs. Smith had cancer or was in bad health nor did the agent of the company have any such knowledge until the proof of death was made out. Mrs. Smith appeared to be in health on the 15th of February, 1928, when she signed the application; her death was due to cancer which she had had for ten months and probably longer."
The defendant's motion for a direct verdict was based upon the following grounds: "Mr. Prince: If the Court *Page 299 please, we should like to make a motion for a directed verdict on the grounds, that no other reasonable inference can be drawn from the testimony other than the fact that Mrs. Emma Smith, the person whose life was insured, was, at the time of the taking of the application and at the time of the date of the policy, suffering from a serious malady, that is cancer. And, second, that there is no evidence from which the jury could infer that knowledge of this disease had been brought to the attention of the Insurance Company and had by the Insurance Company been waived."
The grounds of the plaintiff's motion were as follows:
"Mr. Rice: I move for a directed verdict for the plaintiff for the full amount sued on, with interest from the date of the death of Mrs. Smith, on the ground that the undisputed evidence shows that at the time of the application and the issuance of the policy the only evidence is to the effect that Mrs. Smith did not know that she had cancer or was not in sound health.
"And second: Because there is no evidence whatsoever that there was any intention to defraud."
It is clear that there was no evidence from which the jury could infer that knowledge of this disease (cancer) had been brought to the attention of the Insurance Company, and it is also clear from the record that neither the insured nor the beneficiary had any knowledge that the insured had such disease at the time the application was signed, the premium paid, or when the policy was issued, or at any other time, except that the beneficiary received such information after her mother's death. In fact, there is no contention on the part of Insurance Company, that the insured or the beneficiary had any knowledge of the insured having the disease in question, cancer. Neither is there any claim made that the insured or the beneficiary in any way attempted to practice a fraud on the Insurance Company. Counsel for the respondent stated frankly that "the defendant company does not *Page 300 claim that the insured attempted to defraud the company," and the record shows the same as to the beneficiary, the plaintiff in the case.
Under the state of facts to which we have called attention, viewed in the light of the contract between the parties, it is our opinion that Judge Townsend was right in directing a verdict. See Welch v. Life Insurance Co., 124 S.C. 492,117 S.E., 720.
It is therefore the judgment of this Court that the exceptions be overruled, and that the judgment of the Circuit Court be and the same is hereby affirmed.
MR. JUSTICE STABLER concurs.