Opinion
12792
December 30, 1929.
Before MOSS, J., Orangeburg, August, 1929. Affirmed.
Action by Ethel Harper against the Metropolitan Life Insurance Company. From an order sustaining a demurrer to the complaint, plaintiff appeals.
The complaint was as follows:
For a first cause of action:
I. That the Metropolitan Life Insurance Company is a corporation duly organized and created under the laws of the State of New York, with officers, agents and servants in the county of Orangeburg, South Carolina, for the transaction of its business.
II. That on or about the 5th day of April, nineteen hundred and twenty-seven, Lettie Green, mother of the plaintiff, Ethel Harper, died, leaving surviving her, the plaintiff.
III. That some time before the death of Lettie Green, mother of the plaintiff, Ethel Harper, the defendant, Metropolitan Life Insurance Company, sold and delivered to Lettie Green, mother of the plaintiff, a policy of insurance No. _____, insuring her life for about One Hundred and Forty ($140.00) Dollars, amount of the oldest policy, issued by the defendant, in force at the time of her death.
IV. That Lettie Green, mother of the plaintiff, was practically an invalid and at times very ill a long while before her death; that during such period and her last illness, she resided with the plaintiff, Ethel Harper.
V. That during the time that the mother of the plaintiff, Ethel Harper, was residing with her, the agent of the defendant, Metropolitan Life Insurance Company, would call, from time to time, for the premiums due on the policy, which were duly paid by either Ethel Harper or her mother, Lettie Green, for some length of time.
VI. That during the time Lettie Green, mother of the plaintiff, was residing with the plaintiff, she visited her son, and, when she returned to the home of the plaintiff, she left the said policy at the home of her son, who died some time before his mother; that during the time of her son's illness, she was taken very ill at the home of the plaintiff and remained sick up until her death, at the home of the plaintiff, who looked after and cared for her, at great cost and expense.
VII. That during her last illness, the agent of the defendant, Metropolitan Life Insurance Company, called at the home of the plaintiff a number of times, and on each occasion, the plaintiff, Ethel Harper, at the request of her mother, requested that the agent of the defendant have her named as beneficiary in the policy; that several times, Lettie Green, mother of the plaintiff, told the agent of the defendant that she wanted her daughter, the plaintiff, Ethel Harper, to receive the amount due under the terms of the policy, after her death, and requested that he have the necessary changes made in the policy at once, so that, in case of death, the plaintiff would receive the amount due under the policy, and tried to get the agent to assist her in recovering the policy that was wrongfully in the possession of the wife of her deceased son; that the agent refused to assist her in her effort to recover the policy and took the position that the parties in possession of the policy would be entitled to whatever amount would be paid by the company, in case of death, and refused to accept the premium that was tendered by the plaintiff and her mother, in payment of the premiums due under the terms of the said policy.
VIII. That after the agent of the defendant refused to assist the mother of the plaintiff in her effort to secure possession of the policy and to accept the premiums tendered by the plaintiff and her mother, the plaintiff and her mother notified the Metropolitan Life Insurance Company of the facts in connection with the policy and requested that they name the plaintiff beneficiary in the policy and pay over to her, in case of death, the amount of the policy.
IX. That the plaintiff was informed by the company that they would give the matter their attention if the plaintiff or her mother would advise them the number of the policy. That after receiving such notice, the plaintiff and her mother informed the defendant that the policy was wrongfully in the hands of another party, that she did not known the number and could not recall the amount, and that its agent, in the City of Orangeburg, had repeatedly refused to give the plaintiff or her mother, Lettie Green, such information, and again requested that the defendant name the plaintiff, Ethel Harper, beneficiary, in the policy, on March 29, nineteen hundred and twenty-seven. That the defendant did not reply to the last request to change the beneficiary, and the plaintiff and her mother had every reason to believe that their request had been complied with from the acts of the defendant and its agent; that a few days after the letter of March 29, nineteen hundred and twenty-seven, was written to the defendant, her mother died.
X. That some days after the death of Lettie Green, mother of the plaintiff, the agent of the defendant called at the home of the plaintiff and tried very hard to get the plaintiff to accept Forty ($40.00) Dollars from the defendant in settlement of her claim against the company, under the policy; that the plaintiff refused to accept the amount and demanded of the agent of the defendant the total amount due under the policy.
XI. That the plaintiff notified the defendant and its agent of the death of her mother, Lettie Green, and offered to give them any information that she could and demanded payment of the amount due, under the policy.
XII. That the defendant is justly due the plaintiff the amount of the policy, which the defendant is informed and believes is One Hundred and Forty ($140.00) Dollars, with interest at the rate of seven (7%) per cent. from the 5th day of April, nineteen hundred and twenty-seven.
For a second cause of action:
I. That the Metropolitan Life Insurance Company is a corporation duly organized and created under the laws of the State of New York, with officers, agents, and servants in the County of Orangeburg, South Carolina, for the transaction of its business.
II. That on or about the 5th day of April, nineteen hundred and twenty-seven, Lettie Green, mother of the plaintiff, Ethel Harper, died, leaving surviving her, the plaintiff.
III. That some time before the death of Lettie Green, mother of the plaintiff, Ethel Harper, the defendant, Metropolitan Life Insurance Company, sold and delivered to Lettie Green, mother of the plaintiff, a policy of insurance No. ____, insuring her life for about Eighty-four ($84.00) Dollars, amount of the last policy, issued by the defendant, in force at the time of her death.
IV. That Lettie Green, mother of the plaintiff, was practically an invalid and at times very ill a long while before her death; that during such period and her last illness, she resided with the plaintiff, Ethel Harper.
V. That during the time that the mother of the plaintiff, Ethel Harper, was residing with her, the agent of the defendant, Metropolitan Life Insurance Company, would call, from time to time, for the premiums due on the policy, which were duly paid by either Ethel Harper or her mother, Lettie Green, for some length of time.
VI. That during the time Lettie Green, mother of the plaintiff, was residing with the plaintiff, she visited her son, and, when she returned to the home of the plaintiff, she left the said policy at the home of her son, who died some time before his mother; that during the time of her son's illness, she was taken very ill at the home of the plaintiff and remained sick up until her death, at the home of the plaintiff, who looked after and cared for her, at great cost and expense.
VII. That during her last illness, the agent of the defendant Metropolitan Life Insurance Company, called at the home of the plaintiff a number of times and on each occasion the plaintiff, Ethel Harper, at the request of her mother, requested that the agent of the defendant have her named as beneficiary in the policy; that several times Lettie Green, mother of the plaintiff, told the agent of the defendant that she wanted her daughter, the plaintiff, Ethel Harper, to receive the amount due under the terms of the policy, after her death, and requested that he have the necessary changes made in the policy at once, so that, in case of death, the plaintiff would receive the amount due under the policy, and tried to get the agent to assist her in recovering the policy that was wrongfully in the possession of the wife of her deceased son; that the agent refused to assist her in her effort to recover the policy and took the position that the parties in possession of the policy would be entitled to whatever amount would be paid by the company, in case of death, and refused to accept the premium that was tendered by the plaintiff and her mother, in payment of the premiums due under the terms of said policy.
VIII. That after the agent of the defendant refused to assist the mother of the plaintiff in her effort to secure possession of the policy and to accept the premium tendered by the plaintiff and her mother, the plaintiff and her mother notified the Metropolitan Life Insurance Company of the facts in connection with the policy and requested that they name the plaintiff beneficiary in the policy and pay over to her, in case of death, the amount of the policy.
IX. That the plaintiff was informed by the company that they would give the matter their attention if the plaintiff or her mother would advise them the number of the policy. That after receiving such notice, the plaintiff and her mother informed the defendant that the policy was wrongfully in the hands of another party, that she did not know the number and could not recall the amount, and that its agent, in the City of Orangeburg, had repeatedly refused to give the plaintiff or her mother, Lettie Green, such information, and again requested that the defendant name the plaintiff, Ethel Harper, beneficiary, in the policy, on March 29, nineteen hundred and twenty-seven. That the defendant did not reply to the last request to change the beneficiary and the plaintiff and her mother had every reason to believe that their request had been complied with from the acts of the defendant and its agent; that a few days after the letter of March 29, nineteen hundred and twenty-seven, was written to the defendant, her mother died.
X. That the plaintiff notified the defendant and its agent of the death of her mother, Lettie Green, and offered to give them any information that she could, and demanded payment of the amount due, under the policy.
XI. That some days after the death of Lettie Green, mother of the plaintiff, the agent of the defendant called at the home of the plaintiff and tried very hard to get the plaintiff to accept Forty ($40.00) Dollars from the defendant in settlement of her claim against the company, under the policy; that the plaintiff refused to accept the amount and demanded of the agent of the defendant the total amount due under the policy.
XII. That the defendant is justly due the plaintiff the amount of the policy, which the defendant is informed and believes is Eighty-four ($84.00) Dollars, with interest at the rate of seven (7%) from the 5th day of April, nineteen hundred and twenty-seven.
Mr. L.A. Hutson, for appellant, cites: As to demurrer: 97 S.C. 413; 131 S.C. 148; 134 S.C. 324; 142 S.C. 369; 134 S.C. 324; 141 S.C. 98; 64 S.C. 221; 111 S.C. 295; 114 S.C. 448. One taking insurance on his own life may name any other person as beneficiary: 150 S.C. 326. As to rights of beneficiary: 114 S.C. 306; Id., 405; 139 S.C. 23; 55 S.E., 954; 58 Am. Rep., 458.
Messrs. Elliott, McLain, Wardlaw Elliott, for respondent, cite: Initial pleading should show right of plaintiff to sue: 33 C.J., 85. Insurable interest: 32 C.J., 1197; 137 S.E., 199. Policy may be assigned: 37 C.J., 422, 426. Cases distinguished: 114 S.C. 306; 114 S.C. 405; 139 S.C. 23; 150 S.C. 326.
December 30, 1929. The opinion of the Court was delivered by
This action, commenced March 19, 1929, in the County Court of Orangeburg County, is an action on two policies of insurance alleged to have been issued by the defendant, Metropolitan Life Insurance Company, upon the life of one Lettie Green, who is alleged to have died April 5, 1927; the plaintiff claiming to be entitled to recover from the defendant the amount of the insurance named in the policies. The defendant demurred to the complaint, upon the grounds that the same does not state facts sufficient to constitute a cause of action, in that (1) it does not appear under the allegations therein that the plaintiff was the beneficiary named in the alleged policies of insurance; (2) it does not appear under the allegations therein that there was any legal obligation or duty imposed upon the defendant to change the beneficiary named in the policies.
The matter was heard by his Honor, Judge B. Hart Moss, Judge of the said County Court, who after due consideration sustained the demurrer and issued an order accordingly. From said order the plaintiff has appealed to this Court, upon exceptions imputing error to his Honor, Judge Moss, in sustaining the demurrer and in not holding that the complaint stated a cause of action.
The complaint, which will be incorporated in the report of the case, contains no allegation that the plaintiff was the beneficiary named in the alleged policies, and there are no facts alleged in the complaint which, if proven, would impose any legal obligation or duty upon the defendant to change the beneficiary in the policies or to make payment to the plaintiff under any view of the allegations. It is true, as contended by the appellant, that, for the purpose of a consideration of the demurrer, the demurrer admits as true all allegations of the complaint, and the allegations must be liberally construed in favor of the plaintiff, and if, under the allegations, the plaintiff is entitled to any relief, either on the law or equity side of the Court, the demurrer should be overruled. But notwithstanding that the demurrer must be measured by this test, we think the same was properly sustained. While it is alleged in the complaint that the insured made application to the defendant to change the beneficiary and to name the plaintiff as beneficiary under the policy, the complaint contains no allegation that the policies in question contain a provision permitting the insured to make such change, and in the absence of such allegation it cannot be assumed that the policies contained a provision to that effect, which is a necessary provision to be inserted in an insurance contract in order for the insured to have the right to change the beneficiary. See the case of Antley v. N.Y. Life Ins. Co., 139 S.C. 23, 137 S.E., 199, 60 A.L.R. 184, and authorities therein cited.
It follows, therefore, that his Honor, Judge Moss, committed no error in sustaining the demurrer, and the exceptions are overruled.
It is the judgment of this Court that the order of his Honor, Judge Moss, sustaining the demurrer to the complaint in this action, be, and the same is hereby, affirmed.
MR. CHIEF JUSTICE WATTS, and MESSRS. JUSTICES COTHRAN, BLEASE, and STABLER, concur.