Bank v. North Carolina Mut. Life Ins. Co.
| Decision Date | 11 March 1938 |
| Docket Number | 14639. |
| Citation | 195 S.E. 649,186 S.C. 394 |
| Parties | BANK v. NORTH CAROLINA MUT. LIFE INS. CO. |
| Court | South Carolina Supreme Court |
Appeal from Spartanburg County Court; Arnold R. Merchant, Judge.
Action by Nan Bank against the North Carolina Mutual Life Insurance Company for the fraudulent breach of an insurance contract. Judgment for plaintiff, and defendant appeals.
Affirmed.
A. C Platt and C. Y. Brown, both of Spartanburg, for appellant.
Thompson & Burts, of Spartanburg, for respondent.
This is an action for the fraudulent breach of an insurance contract.
The transcript of record is most confusing.
[186 S.C. 396] Paragraphs 2 and 3 of respondent's complaint are as follows:
The answer of appellant admitted these allegations. For a second defense, appellant alleged that under the terms of the policy contract, and in accordance therewith, and an application therefor filed by the insured, Hettie Pittman, on the 27th day of January, 1936, the beneficiary in the policy was changed from respondent to the insured's estate. And for a third defense, that payment of the full death benefit, $75 was on February 5, 1936, made to Hettie Pittman, the insured, at her request and under her policy contract.
Plaintiff-Respondent's Exhibit A is a lost policy certificate issued by appellant bearing the number 713795, dated 3-26-28, showing Hettie Pittman as the insured, the "Kind of Policy, HA. 5-75.00," and "Name of Beneficiary, Edner B. Brown." The date of this certificate is September 4, 1933.
There is a statement in the brief of appellant that on the back of the foregoing certificate there was an indorsement to the effect that the beneficiary had been changed to the plaintiff, Nan Bank. The transcript of record failed to disclose this information.
Plaintiff-Respondent's Exhibit B is a lost policy certificate issued by appellant bearing the number 713795 (), dated 3-26-28 (the same date of the policy shown in Exhibit A), showing Hettie Pittman as the insured, the "Kind of Policy, H. & A., Disability Benefits-$5.00, Death Benefits-$75.00," and "Name of Beneficiary, Nan Bank."
This last described certificate is dated February 10, 1936, five days after it is alleged in the answer of appellant that it had paid the full death benefit to Hettie Pittman after she had changed the beneficiary (as she had a right to do under the terms of the original policy it is claimed) from respondent to her (Hettie Pittman's) estate. On the trial of the case, there was testimony that the $75, less 50 cents-two week's premiums, was paid to Hettie Pittman on February 5, or 10, 1936, "about two weeks before she died on February 21, 1936."
An application for a duplicate of the policy in issue was made to appellant by Hettie Pittman on January 20, 1936 (appellant's Exhibit A). Apparently a duplicate policy was never issued. We gather from appellant's brief that Respondent's Exhibit B was issued by reason of the application of January 20, 1936. Respondent's possession of this lost policy certificate is not explained.
On January 27, 1936, thirteen days before appellant issued this lost policy certificate showing respondent as beneficiary (her Exhibit B), Hettie Pittman, the insured, signed appellant's form 30 for a change of beneficiary in the policy from Nan Bank, the respondent, to her (Hettie Pittman's) estate (Appellant's Exhibit B).
It is stated in appellant's brief that the following: appears on the back of the lost policy certificate dated February 10, 1936, and introduced in evidence as Respondent's Exhibit B. The above-quoted matter appears in the record as the last portion of Appellant's Exhibit A, and as a part of the application of the insured, Hettie Pittman, for duplicate policy.
All of the foregoing is taken from the record as it comes to this court, with no attempted explanation in the testimony of the various discrepancies.
Appellant's brief does not state the issues, although a submitted case under the rules, but we will undertake to pass upon the exceptions.
The first exception alleges error on the part of the trial judge in refusing to allow appellant to put in evidence a copy of the original policy issued by appellant to Hettie Pittman.
It was admitted by all parties to the action that the original policy, No. 713795, was lost or destroyed. In an abundance of caution, appellant had given respondent notice to produce, and in the event of her failure so to do, secondary evidence of the contents thereof would be offered. Of course, under the circumstances, the best evidence of the contents of the policy, was (1) a duplicate; (2) a copy.
During the cross-examination of respondent, appellant's counsel offered in evidence what he stated was a duplicate of the original policy. Its admission was objected to by respondent's counsel, not on the ground that there was no proof that it was a duplicate, but on the ground, apparently, that the respondent had no notice of the contents and provisions of the policy, and that the only contract betwixt respondent and appellant was the lost policy certificate, notwithstanding the fact that this certificate directly referred to the policy of insurance and by number, and derived its very existence from the policy. The duplicate policy was offered for the purpose of showing that the insured, Hettie Pittman, had the privilege of changing the beneficiary, and that appellant had the right to make a cash settlement with the insured during her lifetime if there were no outstanding beneficiary, and if the policy was at the time of such settlement payable to the estate of the insured.
The trial Judge, after argument, disallowed the admission of the duplicate policy on the ground that respondent did not have notice of the provisions of the policy; it never having been in her possession. After further argument on the part of appellant's counsel, the trial judge had this to say: ...
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