Opinion
14005
February 13, 1935.
Before RICE, J., May, 1934. Affirmed.
Action by Sally Medlin against the Life Insurance Company of Virginia. Judgment for plaintiff, and defendant appeals.
The amended answer and exception No. 4, directed to be reported, are as follows:
AMENDED ANSWERThe defendant above named, by its attorneys, expressly reserving its right to have the motion filed simultaneously herewith heard and determined, answering the complaint herein, alleges:
FOR A FIRST DEFENSE(1) That it admits the allegations contained in paragraphs 1, 2, and 3 of said complaint.
(2) That it denies each and every other allegation in said complaint contained.
FOR A SECOND DEFENSEFor a second defense, and in further answer to the said complaint, this defendant alleges:
(1) That on or about the 9th day of June, 1923, the plaintiff herein made written application to this defendant for a policy of insurance on her life on the industrial plan in the amount of $250.00, in consideration of the payment of a weekly premium of 30 cents thereafter during the lifetime of the insured; that pursuant to said application this defendant issued its policy on the life of plaintiff on the industrial plan in the face amount of $250.00 numbered 4147587, and dated June 18, 1923 and said policy was issued, delivered, and accepted by the insured subject in all respects to the terms, conditions, and provisions thereof.
(2) That said policy provided that, in the event the weekly premium therein provided for was not paid when due, or within the grace period allowed, the said policy should immediately lapse and become null, void, and of no effect.
(3) That the weekly premium of 30 cents becoming due on October 13, 1924, was not paid when due, and the said policy therefore lapsed, but was thereafter revived on February 23, 1925, by the execution of a lien agreement; that the weekly premium becoming due on February 14, 1927, was not paid and the policy lapsed, but was thereafter revived on May 2, 1927, by the payment of premiums then in arrears; that the policy again lapsed on June 25, 1928, for the nonpayment of the premium becoming due on May 7, 1928, but was revived on August 20, 1928, by the execution of a lien agreement; that the policy again lapsed and became of no effect on January 14, 1929, for nonpayment of premiums becoming due on December 3, 1928, but was revived on February 4, 1929, by the execution of a lien agreement; that the weekly premium becoming due on January 21, 1929, was not paid when due, or within the grace period allowed, and in accordance with the expressed provisions of the said policy the same immediately lapsed, and, inasmuch as the same was not revived or reinstated, in accordance with the provisions of the said policy on March 4, 1929, every insurance benefit created under said policy ceased and determined, and the said policy is now, and has been since March 4, 1929, null, void, and of no effect, except for the paid-up insurance values available thereunder.
(4) In further answer to the said complaint this defendant specifically denies that the plaintiff has made application for revival of reinstatement of said policy since the date of final lapse on March 4, 1929, and specifically denies that the said policy or the receipt book issued in connection therewith were delivered to the defendant with the request to or for the purpose of reviving or reinstating the same.
Wherefore defendant, having fully answered, prays that the complaint be dismissed, with cost.
EXCEPTION No. 4Because his Honor, the presiding Judge, erred in charging the jury as follows: "If an agent has been in the habit of going to a certain place where a person lives to collect premiums, even though the policy may state that the premiums may be paid at the home office — if the agent for a long time goes to the home of the insured to collect premiums and that is continued and continued, until the insured depends upon the agent to come and get these premiums, then the agent certainly cannot stop off and say the premiums should have been paid at the home office"; the error being that such charge was not applicable to the issues made by the pleadings and there was no allegation in the complaint that the plaintiff relied on the defendant to send its agent for the collection of premiums, and the lapse occurred because of its failure to do so; and such charge injected into the case a new and different cause of action, and the rights of the defendant were thereby highly prejudiced.
Messrs. Thomas, Lumpkin Cain, for appellant, cite: Breach of contract: 169 S.C. 540; 169 S.E., 430; 144 S.C. 448; 142 S.E., 648; 173 S.C. 131; 175 S.E., 73; 168 S.C. 178; 167 S.E., 232; 172 S.C. 250; 173 S.E., 801; 173 S.C. 139; 175 S.E., 76; 135 S.C. 48; 133 S.E., 227; 170 S.C. 19; 169 S.E., 673. Punitive damages: 173 S.C. 448; 176 S.E., 340; 70 S.C. 108; 49 S.E., 232; 3 Ann. Cas., 407; 166 S.C. 454; 165 S.E., 203; 84 A.L.R., 1336; 167 S.C. 434; 166 S.E., 502; 87 S.C. 331; 69 S.E., 660; 124 S.C. 8; 117 S.E., 305.
Messrs. E.J. Best and Cooper Maher, for respondents, cite: As to fraud in breach of contract: 162 S.C. 303; 160 S.E., 721; 107 S.E., 267; 92 S.C. 385; 81 S.E., 5; 120 S.C. 96; 229 P., 548; 256 S.W. 965; 12 R.C.L., 299. Punitive damages: 70 S.C. 108; 3 Ann. Cas., 407; 135 S.C. 48; 159 S.E., 923; 151 Va., 706; 144 S.E., 635; 127 Va., 5; 102 S.E., 569; 167 S.E., 647. Abuse of discretion: 155 S.C. 356; 152 S.E., 646; 81 S.C. 522; 62 S.E., 849; 145 S.C. 196; 143 S.E., 31; 157 S.C. 320; 154 S.E., 217; 161 S.C. 297; 159 S.E., 625; 168 S.C. 459; 167 S.E., 665; 171 S.E., 604.
February 13, 1935.
The opinion of the Court was delivered by
This action was instituted in the Court of Common Pleas for Richland County in November, 1931, for the recovery of $3,000.00 damages alleged to have been sustained on account of the alleged breach of a contract of insurance No 4147587, issued by the defendant on the life of the plaintiff which said wrongful breach was accompanied by a fraudulent act.
The defendant by its answer alleged that the policy had become lapsed for nonpayment of premiums in accordance with its expressed terms and that no application for the reinstatement thereof had been received, and it specifically denied that it was guilty of any wrongful or fraudulent act in connection with the lapse of said policy or in its relation toward the plaintiff. The appeal raises certain questions as to refusal to grant a nonsuit, to direct a verdict for the defendant, to grant a new trial, and to error in the charge all as shown by the exceptions.
1. As to the refusal to order a nonsuit in the case, we hold that his Honor did not err.
The complaint in sum and substance alleged that plaintiff had a policy of insurance which was in force and effect, and that some time in 1929 the defendant and its agent took the said policy of insurance, and together with the receipt book under the pretext or guise of having the same revived, but after repeated demands the defendant company and its agents have refused to return the same policy or receipt book to the plaintiff on her agent but have retained the same in the custody and possession of the said defendant and its agent; that at the time the said policy of insurance and receipt book were taken by the defendant and its agent it was in full force and effect and needed no revival: that the acts and conduct of the defendant company and its agents as above set forth were fraudulent, intentional, and willful and unlawful to the damage of the plaintiff, $3,000.00.
The answer and Exception No. 4 will be set out in the report of the case.
Mrs. L.E. Walker testified in substance: There was a policy to me in the sum of $300.00. I was beneficiary. Premiums were 30 cents a week; policy became three weeks in arrears. One day in January I offered to pay agent then what I had to pay him on Saturday, and he advised me to have my husband's paid up. The agent took off four policies to have them revived. He promised to bring them back in a week or so, but he did not bring them back. I have never seen either of the policies since. Demand has been made on the company for the policies. Harris, another agent, took the receipt books also which contained a receipt for all the policies. Harris took some revival slips also with the receipt book. My mother-in-law saw him over at the mill at Red Bank and sent him over to the house; he came over to the house and asked me about the insurance, and he said that he would not try to get the old policies back, but he would write to the company and get a duplicate of the policies, which would be just as good, and he would have them in two weeks, and asked me to let him take the book to Columbia office to get the old policy numbers off of it and would get it straightened out and get them back in two weeks; he promised to get duplicate policies. I have not seen the receipt book since I gave it to him. We made demand for the policy at the Chester office; the manager was there and he went in there and looked around for it, but he could not find them and said he would look them up and send them to us, but we never heard of him any more. I left my address with him. At the time the agent took up the policies, they were only three weeks in arrears; it took four weeks for them to run out — to be out of benefit. The agent took them away to have them revived and promised to return them in two weeks. This was along about the last of January or the first of February. I remained in Great Falls till the first of April. I offered him one week pay on them but he refused to take the payment and he asked me not to pay it, as he would revive it. I offered to pay, but he refused to take it.
Another witness, L.E. Walker, swore that he notified the agent Orr, who it is claimed took up the policies, that the Walkers were moving to Red Bank. S.C.
The case of Bradley v. Metropolitan Life Ins. Co., 162 S.C. 303, 160 S.E., 721, holds: "In action for fraudulent breach of contract, where fraud alleged was a statement by the agent, after death of insured, that the policy would be paid, on which assurance the policy was sent in to the company and not returned to assured's administrator, a verdict for punitive damages was sustained."
Wilkes v. Carolina Life Ins. Co., 166 S.C. 475, 165 S.E., 188, we find: "In action against insurer for damages for inception and putting in operation, of fraudulent design to compel lapse of policies by refusing to accept premiums, complaint held not demurrable. There was running throughout complaint as cause of action the underlying allegation that it was purpose of insurer's agent to force lapse of policies by refusing to collect or accept any more premiums."
Crosby v. Met. Life Ins. Co., 167 S.C. 255, 166 S.E., 266, was based on the theory that insurer fraudulently induced plaintiff to pay premiums of policy on another's life in consideration of making plaintiff beneficiary.
McLoud v. Met. Life Ins. Co., 167 S. C, 309, 166 S.E., 343, was based on the theory that insurer misappropriated premiums sent by insured for the purpose of keeping the policy alive; thus lapsing policy by refusing to credit the money on the policy.
Derrick v. N.C. Mut. Life Ins. Co., 167 S.C. 434, 166 S.E., 502, was for insurer's wrongful refusal to pay amount of policy or return policy.
Sutton v. Cont. Cas. Co., 168 S.C. 372, 167 S.E., 647, was for the fraudulent cancellation of a health policy.
Hedgepath v. Provident, etc., Ins. Co., 169 S.C. 364, 168 S.E., 857, was for the fraudulent breach of contract by obtaining a release of claims under accident policy assumed by defendant.
Jamison v. American Workmen Ins. Co., 169 S.C. 400, 169 S.E., 83, was for insurer's fraudulent conduct in not mailing customary notices of due date of premiums as promised by its agent and in refusing to accept premium not promptly paid.
From a careful study of the testimony and cases bearing on the matter we hold that Judge Rice did not err in refusing to grant a nonsuit.
From a careful study of the testimony and cases bearing on the matter we hold that Judge Rice did not err in refusing to grant a nonsuit.
2. As to refusal to direct a verdict for defendant and to grant a new trial after the verdict, we see no error in Judge Rice's action.
In addition to the testimony of the plaintiff's witnesses, it was admitted by F.L. Whitlock, a witness for the defense, that the Walker family did deliver these policies to the company for revival, and they were revived, and that every effort was made to deliver them back to the Walker family. Also that in the meantime the policy lapsed. All this testimony made it a question for the jury under the pleadings, and, as the matter rested with Judge Rice, we cannot say that he was in error in refusing a direction of a verdict or in the refusal of a new trial.
When we take the ground made in Exception No. 4 against the charge of his Honor in connection with the general charge, the testimony, and the pleadings, we fail to see any reversible error. If appellant wished any fuller discussion of the matter by the Court, the way was open by making a request, and, as this was not done, there is no just cause of complaint.
It is the judgment of this Court that the judgment below be, and the same is hereby, affirmed.
MESSRS. JUSTICES STABLER, CARTER and BONHAM concur.