Opinion
12884
April 4, 1930.
Before WHALEY, J., Richland County Court, August, 1929. Affirmed.
Action by Will Williams against the Continental Casualty Company. From an order overruling a demurrer to the complaint and from an order overruling defendant's motion to make complaint more definite and certain, defendant appeals.
The complaint and demurrer directed to be reported were as follows:
COMPLAINTFor a First Cause of Action:
Paragraphs 1 and 2 relate to the residence of the plaintiff and the fact that the defendant company is a corporation engaged in a health and accident insurance business and is domesticated in the State of South Carolina.
3. That heretofore on or about the 26th day of February, 1929, this plaintiff, who is employed by the Southern Railroad in the capacity of a "hostler's helper not coupler" and who was on the above date in Spartanburg, S.C. was approached by an agent of the defendant, one R.E. Cooper, and solicited for an insurance policy; that in order to induce this plaintiff to enter into an agreement and contract of insurance the defendant herein through and by its agent R. E. Cooper stated to this plaintiff that his policy was the best of the kind to be had; that it paid the insured for sickness, confining and non-confining, that it went into effect immediately, even before the premium was deducted from the wages of said plaintiff; that if this plaintiff was not satisfied when the said policy was received, and if plaintiff found out upon examination of same, it was not as had been represented to him by this defendant and its agents, then, he might cancel the policy and demand back the money paid in as premiums to date; that on these false, fraudulent and untrue statements, this plaintiff was induced to and did apply for the said policy of insurance; that the plaintiff was required to pay a certain sum then and there and a certain amount from his wages each month during the life of the said policy; that the yearly premium was Thirty-eight ($38.00) Dollars, payable in monthly installments, and in consideration therefor, this plaintiff was to be indemnified to the amount of one thousand dollars, a monthly accident indemnity of forty dollars, and a monthly sickness indemnity of forty dollars.
4. That subsequently thereto the said policy was duly received by this plaintiff; that all sums due and owing on same was deducted each and every month in advance from the Southern Railroad from the wages of this plaintiff before his said wages were received; that during the month of April, 1929, this plaintiff became ill; that he was confined to bed, unable to perform his regular work and under the care of a physician; that claim for two weeks were filed with this defendant, properly filled out and signed by said attending physician; that the defendant and its agents failed and refused to answer said claim and demand for a period of nearly two months and when said defendant did write to this plaintiff informed him that they would not pay the claim but would cancel the policy if he desired; that the defendant did not at any time offer to refund the premiums paid in on the said policy.
5. That the defendant and its agent R.E. Cooper misrepresented and misstated the said conditions of the policy of insurance to this plaintiff, and made false statements, knowing them to be false and made them to induce this plaintiff to take out the said policy of insurance; that the plaintiff herein was induced through and by the said false, fraudulent, untrue and misleading statements to contract for the policy of insurance. That plaintiff's damages were due, caused and occasioned by the acts and statements of this defendant in making fraudulent statements and in failing to pay the claim of this plaintiff when presented. All to the plaintiff's damage in the sum of Five Hundred ($500) Dollars.
Wherefore, plaintiff demands judgment against defendant in the sum of Five Hundred ($500) Dollars and for the costs of this action.
For a Second Cause of Action:
1. That Paragraphs 1 and 2 of this second cause of action is the same as the like paragraphs in the first cause.
3. That heretofore on or about the 26th day of February, 1929, the plaintiff herein, who is an employee of the Southern Railroad and who, on that particular date, was in Spartanburg, S.C. was approached by one, R.E. Cooper, who represented himself to be the duly constituted and legally appointed agent of the defendant company and represented himself as being licensed to sell insurance in the State of South Carolina. That this plaintiff is informed and believes that the said R.E. Cooper was never licensed to sell insurance in this State and was a nonresident but that in utter disregard, and in open violation of the laws of the State of South Carolina, and in violation of Section 4072, Vol. 3, Code 1922, called on this plaintiff and solicited insurance and did obtain an application for same in the defendant's company; that in order to induce this plaintiff to take out the said policy this defendant and its agent made false and fraudulent statements, to wit: that the premiums would be refunded if the insured was not satisfied with the policy when same was received; that immediately upon demand and proof, sick benefits would be paid this plaintiff, whereas, as a matter of fact when demand was made under the policy the said defendant refused to pay same and offered to cancel policy rather than pay same but did not offer or tender back the said premiums.
4. That the defendant and its agents herein violated Section 4072 in the particulars referred to, and fraudulently, carelessly, willfully, wantonly and maliciously disregarded the statute laws of the State of South Carolina as set out in Volume 3, Code of 1922, § 4086, by ratifying the acts of an unlicensed agent and issuing policies of insurance thereon; that this plaintiff claims and demands the sum of One Thousand ($1,000) Dollars penalty as damages, as set out in the said Statute, to wit: "should any such insurance company violate the provisions of this Chapter, they shall be fined not to exceed One Thousand ($1,000) Dollars, same to be recoverable in any Court of competent jurisdiction in this State, to be recovered by any citizen of the State holding a policy of insurance in the said company." That the plaintiff is a citizen of the said State and holds a policy of insurance in the said company.
5. That the defendant and its agents did breach their said contract in receiving said moneys from this plaintiff, which said contract was written by an unlicensed agent. That this defendant did violate the laws of this State as herein before set out in issuing a policy of insurance and ratifying the acts of an unlicensed agent all to the plaintiff's damage in the sum of One Thousand ($1,000) Dollars.
Wherefore, plaintiff demands for the second cause of action the sum of One Thousand ($1,000) Dollars, damages, as penalty against the defendant and the cost of this action.
DEMURRERThat the complaint fails to state facts sufficient to constitute a cause of action in the following particulars:
As to the First Cause of Action:
1. That the contract of insurance referred to in the complaint consists of a policy and a written application for the policy of insurance and that by the terms of the application and the policy, the application itself is a part of the insurance contract; that the application for insurance states the name of the agent of the company to be J.M. Cooper; that the application also states the amount of the insurance, the amount of the accident and sickness indemnity and the amount of the annual premiums, and that these facts are also set forth in the policy of insurance itself; that the application for the policy of insurance signed by the plaintiff contains the following provisions:
"I understand that the agents and solicitors of said company are not authorized to extend credits, or waive, extend or change any of the terms, conditions or provisions printed herein, I also understand that my health insurance is not to be effective at once upon the issue of the policy, but at a later date as therein provided."
2. That the policy of insurance provides that the health insurance therein provided shall begin not later than fifteen days after the date of the said policy.
3. That a copy of the application for the policy of insurance is attached to and made a part of the insurance contract; that the allegations contained in Paragraphs 3, 4 and 5 of the first cause of action attempt to set up matters and things alleged therein which are contrary to the terms of the insurance contract, contrary to the terms of the written application and contrary to the terms of the written policy and therefore attempt to vary the terms of a written contract, to wit: The written application for the insurance and the insurance policy, the same constituting the insurance contract. As to the Second Cause of Action:
1. That the contract of insurance referred to in the complaint consists of a policy and a written application for the policy of insurance and that by the terms of the application and the policy, the application itself is a part of the insurance contract; that the application for insurance states the name of the agent of the company to be J.M. Cooper; that the application also states the amount of the insurance, the amount of the accident and sickness indemnity and the amount of the annual premiums, and that these facts are also set forth in the policy of insurance itself; that the application for the policy of insurance signed by the plaintiff contains the following provisions:
"I understand that the agents and solicitors of said company are not authorized to extend credits, or waive, extend or change any of the terms, conditions or provisions printed herein. I also understand that my health insurance is not to be effective at once upon the issue of the policy, but at a later date as therein provided."
2. That the policy of insurance provides that the health insurance therein provided shall begin not later than fifteen days after the date of the said policy.
3. That a copy of the application for the policy of insurance is attached to and made a part of the insurance contract; that the allegations contained in Paragraphs 2 and 3 of the second cause of action attempt to set up matters and things alleged therein which are contrary to the terms of the insurance contract, contrary to the terms of the written application and contrary to the terms of the written policy and therefore attempt to vary the terms of the written contract, to wit: The written application for the insurance and the insurance policy, the same constituting the insurance contract
4. That the second cause of action sets forth an alleged claim for a penalty of $1,000.00 provided in Section 4072 of the Code of Laws, Volume 3, 1922, which Section provides as follows: That it shall be unlawful for any insurance company doing business through agents in the State of South Carolina to write insurance except through or by duly authorized agents of such insurance company residing and doing business in this State; provided however, that agents licensed under the insurance law of this State may write insurance at the request of other agents or brokers and allow said agents or brokers certain commissions. That it is alleged in the complaint that the said insurance policy was written through an alleged agent by the name of R.E. Cooper; that the insurance contract represented by the application for the insurance and the policy itself, show that the insurance was written through an agent by the name of J.M. Cooper and not R.E. Cooper as alleged. That even if the insurance was written through the alleged unauthorized agent named R.E. Cooper, acting for and in behalf of J. M. Cooper under the proviso clause of said Section, the defendant company is not liable for the penalty referred to and no cause of action is stated.
Messrs. Gibbes Porter, for appellant.
Mrs. S. Evelyn Lester, for respondent.
April 4, 1930. The opinion of the Court was delivered by
This action commenced in the County Court of Richland County, August 15, 1929, is an action by Will Williams, as plaintiff, against Continental Casualty Company, the defendant, for recovery of damages in the sum of $500 under the first cause of action alleged, and for the sum of $1,000 under the second cause of action as a penalty provided for under Section 4086, Volume 3, 1922 Code of South Carolina. The complaint will be reported with the case. The defendant demurred to the complaint upon the ground that the same did not state facts sufficient to constitute a cause of action. The demurrer was heard by his Honor, M.S. Whaley, County Judge for Richland County, who after due consideration overruled the same. After the demurrer was overruled, the defendant made a motion to make the complaint more definite and certain. This motion his Honor, Judge Whaley, also overruled. From the order overruling the demurrer and from the order refusing the motion to make the complaint more definite and certain, the defendant has appealed to this Court, upon exceptions imputing error to his Honor, the County Judge, in issuing said orders.
By reference to the demurrer, which will be incorporated in the report of the case, it will be seen that, in the main, the matters set forth in the demurrer upon which the same was based do not appear on the face of the complaint, and cannot, therefore, be considered in passing upon the demurrer; such matters could only be of avail to the defendant when properly set up in answer by way of defense. In passing upon a demurrer to the complaint, the same must be considered in the light of the allegations of the complaint, and matters not appearing on the face of the complaint have no place in the consideration. In our opinion, the demurrer is not well founded, and his Honor, Judge Whaley, properly overruled the same.
As to the exceptions imputing error to his Honor in refusing the motion to make the complaint more definite and certain, we deem it sufficient to state that the motion was made too late. Under the rules of the Court, motions to make the complaint more definite and certain must be noticed before serving demurrer or answer, and, unless the rights thereunder are reserved, must be heard and disposed of before serving demurrer or answer, and, the motion to make more definite and certain in this case having not been made or noticed until after the demurrer was served and overruled by the Court, the same could not properly be considered by the Court.
The exceptions are overruled, and the orders and judgment appealed from affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, BLEASE and STABLER concur.