Livingston v. Union Central Life Ins. Co.

The opinion of the Court was delivered by Mr. Justice Watts. This is an appeal from, a directed verdict in favor of plaintiff by the trial Judge, County Court, Judge Whaley. His Honor directed a verdict on the ground of materiality, ruling that the evidence upon this trial differed merely in quantity and not in quality of character from that before the Supreme Court then, the opinion in which has since been filed. Livingston v. Insurance Co., 115 S. C, 128, 104 S. E, 538. The exceptions are four in number, and respondent served notice that she would ,ask that the verdict be sustained on three additional grounds. Counsel for appellant admitted on the record during the trial that he did not allege or charge in the evidence that Livingston was guilty of fraud. This was an admission that Livingston did not know, and was not conscious at the time he made the answers, that his answers were false in fact. In the court’s ruling he eliminated any charge of fraud. The record expressly admitted that Livingston, in making answers, was not conscious of' any falsity. Even if he had answered, as appellant now contends *95 that he should have answered, and the appellant had written the doctors, the appellant would not have received any further information that would have helped it, as an examination of the testimony of Drs. Gibbes, Taylor, and McIntosh will disclose. Livingston was examined at the request of his wife, and did not himself consult a physician. His Honor could not have done otherwise under the case of Livingston v. Union Central Life. Insurance Co., 115 S. C, 128, 104 S. E., 538, than direct a verdict. He was correct in holding that the evidence in the case on the question of materiality differed only in quantity, not in quality of character, and, under the opinion by Mr. Justice Gage, in the other case, the Court would stultify itself not to overrule the exceptions and affirm the judgment. There is no evidence that Livingston himself at any time consulted any physician. Judgment affirmed. Mr. Chiee Justice Gary and Mr. Justice Fraser concur. Mr. Justice Cothran dissents.