Coast Line received the proceeds of plaintiff's cotton, or of some that was left in place of it, and, therefore, as between the defendants, it ought to pay the judgment.

MR. JUSTICE WATTS concurs with Mr. Justice Hydrick.

MR. JUSTICE GAGE. I think the only reasonable conclusion to be had from the testimony is: (1) That the Atlantic Coast Line Railroad Company by itself committed the delict; and (2) that there is no testimony tending to show that the negligence was that of a joint employee acting for both parties.

I, therefore, agree to the conclusion announced by Justice Hydrick.

10499

LIVINGSTON v. UNION CENTRAL LIFE INSURANCE CO.

(104 S. E. 538.)

1. INSURANCE-APPLICANT NOT PUT ON NOTICE BY STIPULATION THAT HE MUST ANSWER QUESTIONS CORRECTLY.-Applicant for life insurance was not put on notice by stipulation that all statements should be deemed representations and not warranties, and that no statement should avoid the policy unless contained in the written application and that he must answer the questions correctly at the peril of the loss of his policy, and he never agreed to so much by the stipulation.

2. INSURANCE-WHETHER ANSWER OF APPLICANT MATERIAL TO RISK MIXED QUESTION OF LAW AND FACT.-Whether an answer of an applicant for life insurance was material to the risk is a mixed question of law and fact.

3. INSURANCE EVIDENCE INSUFFICIENT TO SUSTAIN FINDING INSURED'S NEGATIVE ANSWER IN APPLICATION WAS MATERIAL TO RISK.-In an action on a life policy, evidence held insufficient to justify finding

NOTE. On the question of time covered by question or representation as to consultation with physician, see note in 45 L. R. A. (N. S.) 162.

As to what constitutes consultation with, or attendance by, physician, within the meaning of an application for life insurance, see note in 18 L. R. A. (N. S.) 362.

that negative answer to the question whether insured had had any illness or consulted any physician in the last five years was material to the risk.

Before WHALEY, J., County Court, Richland, October term, 1919. Reversed.

Action by Mrs. Mattie Caldwell Livingston against the Union Central Life Insurance Company of Cincinnati, Ohio. From judgment for defendant, the plaintiff appeals.

The exceptions follow:

1. Because his Honor erred in charging the jury as follows:

"Now, I have ruled that no fraud was in this case. There is no testimony of fraud in this case. It is a question of false misrepresentation. And in order to avoid this policy, to make it of no effect in the eyes of the law, any one of those two representations here must have been false, must next have been material to the risk, the insurance company relying upon such representations in making or entering into its contract. ***

"As to the first answer, which is alleged here to have been false, which answer was, 'No,' to the following question, 'Have you ever had any of the following diseases or symptoms, loss of consciousness, dizziness, duodenal ulcer?' to the first two there is no issue as to those. Those go out of the case. That leaves for your consideration only one—

As

duodenal ulcer. Did the deceased make a false statement in answering that question?

"There did not necessarily have to be any intent on his part to deceive. But was his answer correct or was it incorrect? ***

"What those facts are it is for you and not for me, but take them all, whatever they are, and from them say what conclusion would a reasonable, ordinary, prudent man, acting under similar circumstances, have come to. Would he

9 S. C. 115.

Exceptions.

[115 S. C. have concluded that he had duodenal ulcer? If so, then Mr. Livingston should have so concluded, and if he answered, 'No,' then his answer would have been false, no matter how it was made, it would have been false, and if material to the risk and relied upon by the insurance company underwriting that risk and entering upon the contract of insurance, his policy would be void, because as we all know these contracts are determined by the risk. ***

"As to whether or not there was any consultation—that is a question that should be left to you gentlemen. Take all of the facts and circumstances there; apply the same test I gave you just now. Would that ordinary, reasonable, prudent man have considered that there was such a consultation as this contract called for? ***

"Now, if you believe that there was a falsity of representation under what I have already given you in regard to any one of those answers, that would not be enough to vitiate this policy. It must next be shown to you that they were material, each or both, as the case may be, and relied upon by the insurance company when entering into this contract."

The error being that in such a case a misrepresentation or misstatement in the application will not enable the insurance company to avoid the policy, even though material and relied upon, unless the same be fraudulent-unless consciously made by insured, with intent to deceive.

2. That his Honor erred in charging the jury:

"* * *That leaves for your consideration only oneduodenal ulcer. Did the deceased make a false statement in answering that question?

"There did not necessarily have to be any intent on his part to deceive. But was his answer correct or was it incor

*

rect? * * "If there was a consultation between him-between Livingston and the physicians-or if he had discussed the matter with a physician, or if there were any other circum

stances bringing it to his attention that anything was the matter with him in the way of duodenal ulcer, then take all of the circumstances, whatever they are, going only by the facts of this case, for outside of that realm you cannot go, and what those facts are it is for you and not for me, but take them all, whatever they are, and from them say what conclusion would a reasonable, ordinary, prudent man, acting under similar circumstances, have come to. have concluded that he had duodenal ulcer? If so, then Mr. Livingston should have so concluded, and if he answered 'No,' then his answer would have been false, no matter how it was made, it would have been false. ***”

Would he

Thereby giving to the jury a false test to determine whether insured had correctly answered the question, “Have you ever had duodenal ulcer?" in that it permitted the jury to conclude that his answer was false or incorrect without even requiring defendant to prove that insured in fact had duodenal ulcer.

3. Because, upon the motion for a new trial made by the plaintiff upon her first ground, as follows:

"(1) That his Honor erroneously charged the jury that the defendant need not establish fraud, in any of its phases or meanings, on the part of the insured in order to avoid the policy, and thereby by inference, if not directly instructed the jury that it was not necessary for defendant to prove that Livingston was even conscious of the misstatements of facts alleged to have been made in the application,"-his Honor refused the same and placed his refusal upon the following ground, as appears from his order:

“*** I am of the opinion that it was not necessary, in order to defeat the policy, for the defendant to show that Mr. Livingston was in bad faith endeavoring to defraud the insurance company, and it appears from the authorities. that if one secures a contract for insurance upon a false statement of a material fact, which fact was in the knowl

Exceptions.

[115 S. C. edge of the applicant, and which false statement was material and misled the company issuing the policy, that said policy should be avoided. This was the issue which I left. to the jury, instructing them that, while it was not necessary to show fraud, it was necessary to show that Mr. Livingston knew the representations to be untrue. ***”

The error being:

(a) That his Honor thereby refused the motion upon the ground that he had submitted the issue of fraud to the jury, when, as a matter of fact, he had repeatedly ruled during the trial and had explicitly instructed the jury that the issue of fraud was not in the case; and (b) that his Honor sustained the verdict upon the ground that he had by his charge required defendant to show that insured knew the representations to be untrue, when he had made no such requirement.

4. Because his Honor refused plaintiff's motion to set aside the verdict and enter judgment for plaintiff which was made upon the following ground:

"Plaintiff also moves the Court to set aside the verdict and enter judgment for plaintiff upon the ground that defendant could not succeed without proving fraud, and defendant's counsel stated in open Court that he had not alleged fraud in his answer and did not intend to charge Livingston with fraud in the case"—and erred in refusing the same for the reasons therein stated, and further erred in refusing the same upon the ground set forth in his order:

"*** I am of the opinion that it was not necessary, in order to defeat the policy, for the defendant to show that Mr. Livingston was in bad faith endeavoring to defraud the insurance company, and it appears from the authorities that if one secures a contract for insurance upon a false statement of a material fact, which fact was in the knowledge of the applicant, and which false statement was material and misled the company issuing the policy, that said policy