Bailey v. North Carolina Mut. Life Ins. Co.

• Decision Date: 12 June 1934
• Docket Number: 13869.
• Citation: 175 S.E. 73,173 S.C. 131
• Parties: BAILEY v. NORTH CAROLINA MUT. LIFE INS. CO.
• Court: South Carolina Supreme Court

175 S.E. 73

173 S.C. 131

BAILEY v. NORTH CAROLINA MUT. LIFE INS. CO.

No. 13869.

Supreme Court of South Carolina

June 12, 1934

Petition for Rehearing Dismissed July 3, 1934.

Appeal from Common Pleas Circuit Court of Sumter County; M. M. Mann Judge.

Action by Julia Bailey against the North Carolina Mutual Life Insurance Company. From an order of nonsuit, plaintiff appeals.

Affirmed in part and reversed in part.

L. D Jennings, of Sumter, for appellant.

Epps & Epps and Geo. D. Levy, all of Sumter, for respondent.

BLEASE Chief Justice.

The appellant, a colored woman, had with the respondent, an insurance company, conducted by colored people, whose policyholders were also colored, an insurance policy, issued on September 14, 1931, whereby the company, in consideration of a weekly premium of 15 cents, agreed to pay the appellant a maximum weekly benefit for disability from sickness or accident the sum of $1.50 per week, during the first six months after the policy was issued, and $3 per week thereafter, and upon the death of the insured to pay the named beneficiary the sum of $39. The weekly premiums were paid up to and including February 15, 1932. In the latter part of January, 1932, appellant became sick, suffering, so the certificate of the attending physician showed, from the disease of "southagitis," from which illness she was disabled for some time; her contention being for at least three weeks. The sick benefit of $1.50 for the first week was duly paid by the company, apparently without question as to its correctness. On February 11, 1932, J. C. Prioleau, the colored agent of the insurance company, paid the appellant $1.50, apparently the sick benefit for the second week. He gave her on that date a blank to be properly filled out for the third week sick benefit, to which she claimed she was entitled.

Alleging in her complaint the facts above stated, the appellant further alleged, in effect, which allegations we think set forth the gist of her complaint, that the insurance company was due her the sum of $1.50 for the third week's sick benefit, and that, by false and fraudulent representations she was induced to sign a paper, which the company claimed to be a release and settlement in full of her policy, which "so called release" was procured under false and fraudulent representations, for the purpose of avoiding the contract of insurance, and for the further purpose of cheating and defrauding appellant and her beneficiary out of the benefits they were entitled to under the terms of the policy. The fraudulent conduct of the agent occurred, as the complaint alleged, on February 11, 1932.

On February 15, 1932, as the complaint alleged, and as was also shown without dispute, the agent of the insurance company collected the weekly premium then due on the policy, which kept it in force until February 22, 1932, and the policy all the time was in the possession of the appellant.

This action for $3,000 actual and punitive damages was instituted by the appellant on February 20, 1932.

The insurance company admitted the allegations of the complaint as to the issuance of the policy and its terms. It denied all the other allegations, including therein the claims of the plaintiff that the policy had been canceled prior to the date of the complaint, that there had been any release of the company's liability thereunder, and any fraudulent conduct on the part of the company or its agent.

In the trial, after hearing the evidence on the part of the plaintiff, a nonsuit was ordered, and from that action the insured has appealed to this court.

The evidence for the appellant showed the receipt by her of the first two weeks' sick benefit, at the rate of $1.50 per week, and the offer and tender of the agent of the company to pay her, on the 22d or 23d of March, 1932, by the check of the company, the sum of $1.50 for the third week's sick benefit, which check she declined to accept, for the reason that her rights had been then intrusted to her attorney. It also showed no payment, or offer to pay, of any premium on the policy after February 15, 1932. Testimony for the appellant went to show that Prioleau, the agent, told her at the times he was making the two payments of the sick benefits, in effect, that she was signing a receipt for the amounts he was paying; that he also told her that she could not collect sick benefits for more than four weeks in any one calendar year, although the policy provided for the payment for as much as twenty weeks' benefit in such year; and that he would cancel the policy. It was further disclosed that Prioleau, on February 18th, wrote the insured a letter, in which he said, "the release you signed the other day was in full settlement of your policy," and in that letter he told the insured she had asked to be allowed to look the policy over for a day or so, and then she would send it in. He further advised her that she had only paid in $3, and the company had paid her $3 back, and held her receipt, along with the release, for the same. Upon receipt of that letter, the husband of the insured consulted her attorney, and placed the policy in his charge.

The papers introduced in evidence, signed by the insured, were receipts for the amounts of the sick benefit paid to her. No paper showing, or attempting to show, any release on the part of the insured to the company as to any right or claim she had under the policy was offered, and there was absolutely no evidence showing that she had ever executed any such instrument. There was no evidence tending to show that the policy issued to the insured had ever been marked canceled on the books of the company.

The fact that the insured still had the policy in her possession, and the receipt of the company for the weekly premium paid on February 15, 1932, which kept the policy in force for one week thereafter, clearly established the fact that the policy was in full force on February 20th, the day on which the suit was instituted.

The trial judge, therefore, was clearly right when he ruled to the effect, on the motion for a nonsuit, that, at the time of the institution of the suit, the policy was in force, the insured had all her rights thereunder, and that if she had died during that time the beneficiary would have been entitled to receive the death benefit. There being no cancellation of the policy, and no release on the part of the insured of any right she had under its terms, there could not, therefore, have been any damage to the insured on that account. Since...