Briefly stated, my reasons for concurring in the conclusion of Mr. Justice Carter's opinion, that the judgment appealed from should be affirmed, are as follows:
The policy of insurance provided that if the insured died "during the first twelve months from date of this policy" from either one of many diseases mentioned, nephritis included, only the sum of $25.00, and not the total amount of insurance, $100.00, would be paid. The company defended on the ground, that the insured died a few days before the expiration of the twelve months' period from nephritis, a disease of the kidneys; that $25.00, the only sum due under the terms of the policy, had been paid. The only evidence I find to sustain the defense was that of a physician, who had treated the insured for just a few days. He testified that, while he had given a certificate that the insured had died of nephritis, he could not say positively that such was the case; that he only treated the insured about five days, the last visit being two days prior to his death; that only by a urinalysis test, or a post mortem examination, could he have determined that death was caused by nephritis, and that neither of these examinations was made. He did not see the insured the day he died, or the body after death.
In his report to the County Court on the appeal, Magistrate John L. Lancaster said: "The sole question before the Court was a question of fact: whether or not the insured died from a disease excepted from the policy within twelve months from its date?" The burden to sustain the defense was, of course, on the insurance company. *Page 485 The magistrate properly held that, under the evidence submitted, the question of fact was one for the jury.
It is my opinion that the complaint did not charge any fraudulent act on the part of the insurance company, or any of its agents. Neither was there ambiguity in the language of the policy. So the testimony as to the representations of one of the agents as to the terms of the policy was improperly admitted. But this error in the magistrate's Court, after the affirmance of the judgment of that Court by the County Court, is not sufficient for this Court to reverse the judgment. Section 804 of the Code, touching appeals from Courts of magistrate to the Circuit Court or County Court, provides: "Upon hearing the appeal, the appellate Court shall give judgment according to the justice of the case, without regard to technical errors and defects which do not affect the merits."
The erroneous admission of evidence in a trial before a magistrate does not require the appellate Court to reverse the judgment, but the appellate Court is to give judgment according to the justice of the case. Naufal v. Gergel, 136 S.C. 366,134 S.E., 463.
The County Judge, as he stated in his order, feeling "that the judgment should stand," affirmed it on "the entire record in this case." Clearly, he meant that his judgment was given "according to the justice of the case, without regard to technical errors and defects which do not affect the merits." The evidence in the trial and the report of the magistrate warranted that conclusion.
MESSRS. JUSTICES STABLER and BONHAM concur. *Page 486