Barber v. Industrial Life & Health Ins. Co.
| Decision Date | 12 December 1938 |
| Docket Number | 14789. |
| Citation | 200 S.E. 102,189 S.C. 108 |
| Parties | BARBER v. INDUSTRIAL LIFE & HEALTH INS. CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Beaufort County; Philip H Stoll, Judge.
Action by Maude Mitchell against the Industrial Life & Health Insurance Company for breach of a life insurance contract naming plaintiff as beneficiary, and accompanying fraud. Judgment for plaintiff, after whose death the administratrix of her estate, Addie Y. Barber, was substituted as a party and defendant appeals.
Affirmed.
McEachin & Townsend, of Florence, and Thomas & Thomas, of Beaufort, for appellant.
Wm. N. Levin and W. Brantley Harvey, both of Beaufort, for respondent.
Since final judgment in the Court of Common Pleas, the plaintiff-respondent, Maude Mitchell, died intestate, and Addie Y. Barber was appointed administratrix of the estate of said Maude Mitchell, deceased.
The "Statement" in the Transcript of Record, agreed to by counsel for respondent and appellant, so succinctly sets forth the issues as made by the pleadings; and the result of the trial, we adopt it.
This action was commenced on the 22d day of October, 1937, for the recovery of $3,000 for an alleged breach, accompanied by a fraudulent act, of an insurance contract issued on the life of Philip Mitchell, and in which the respondent was named the beneficiary.
The complaint alleges, among other things, that on the 26th day of November, 1934, the appellant issued and delivered to Philip Mitchell its "straight life" insurance policy No. A 2538892, wherein and whereby, upon the payment by the said Philip Mitchell of a premium of 25 cents a week, the appellant agreed to pay to the beneficiary, Maude Mitchell, the sum of $250 at the death of the insured; that from the date of said policy until the death of the insured the respondent paid each weekly premium due on said life insurance policy; that the insured died on the 6th day of September, 1937, while the policy was in full force and effect; that the respondent made claim upon the appellant for the amount of the insurance policy, to wit, $250, offering due proof of the death of the insured; that the agent of the appellant refused to accept proof of death and informed respondent that the "straight life" policy, in which respondent was named as beneficiary, was not in force, and that the only policy in force was a "sick and accident" policy No. 6973965, dated June 25, 1934, wherein the death benefits were only $50; that upon examination of the receipt book she ascertained that the appellant had fraudulently substituted for the said "straight life" policy its policy No. 6973965; that the appellant has repeatedly refused to consider and pay claim of respondent and has tried to induce respondent to accept the benefits due under said fraudulently substituted "sick and accident" policy, with the intent to cheat and defraud the respondent out of $200 benefits that she is entitled to under said "straight life" policy.
The appellant's answer, after denying certain allegations of the Complaint, admits: (1) The collection of premiums on a policy on Philip Mitchell until his death on September 6, 1937; (2) the appellant's refusal to accept proof of death and claim under the $250 policy; and (3) the appellant's informing the respondent that the $250 policy had lapsed, and attempting to pay her a $50 sickness and accident policy, the only contract on Philip Mitchell in force at the time of his death; and by way of affirmative defense reiterates the lapse of the $250 policy before Philip Mitchell's death, the exercise of the appellant's right, after nonpayment of the premium, to mark the $250 policy cancelled, and the issuance of a $50 sickness and accident policy, upon which premiums were paid until the death of Philip Mitchell. The answer closes with the request to be allowed to pay into Court $50 under the policy admitted by the appellant to be in force.
The case came on for trial before the Honorable Philip H. Stoll and a jury at the Spring term (1938) of the Court of Common Pleas for Beaufort County, resulting in a verdict for the respondent in the sum of $250 actual and $1500 punitive damages.
Motion for a new trial was duly made and refused upon condition that the respondent remit upon the record of the judgment $500 punitive damages. The respondent having immediately complied with his order, judgment was entered for $250 actual and $1,000 punitive damages.
The appellant in due time served notice of appeal from the trial Judge's rulings, refusal of non-suit, directed verdict and new trial; and errors in the charge.
Appellant's exceptions allege (a) error in the refusal of the trial Judge to grant a non-suit on the ground that the testimony is susceptible of only the inference that the policy, the basis of this suit, lapsed because of non-payment of premiums; (b) error in the refusal to grant a directed verdict as to actual and punitive damages on the same ground; (c) errors of commission and omission in the charge to the jury; (d) error in the exclusion of certain testimony, and (e) error in refusing a new trial.
The exceptions go farther in alleging error with reference to the refusal of the trial Judge to grant a non-suit and direct a verdict than is warranted by the record. Appellant has confused its grounds for directed verdict with grounds for a new trial in Exception II. In stating the grounds in the exception, as to the refusal to grant a non-suit and direct a verdict, we therefore limited same to alleged errors directed to matters actually passed upon by the trial Judge. For instance in neither the motion for non-suit or directed verdict was the motion bottomed upon the ground that respondent had no right of action. The only direct motion for a directed verdict was as to punitive damages, but there can be read into it a motion also as to actual damages, and it was apparently so treated by the trial Judge; and by counsel on this appeal.
The appellant has elected to state the "Questions Involved" relating to the motion for nonsuit and direction of verdict generally; and direction of verdict as to punitive damages, and for a new trial as follows:
"I. A non-suit or direction of verdict should have been ordered because:
(a) Maude Mitchell had no right of action (Exception II (6)
(b) The evidence showed that the policy sued on had lapsed for non-payment of premiums (Exception I)
II. Verdict as to punitive damages should have been directed or a new trial granted on the grounds (Exception II):
As to the first sub-division (a) just above set out, the point is not properly before the Court. Neither the motion for a nonsuit nor the motion for directed verdict was upon any ground other than that the policy, the basis of the suit, had lapsed because of non-payment of premiums.
Our discussion of sub-division (b) on the motion for a non-suit, or direction of a verdict, is necessarily confined to the direction of verdict. Under the respondent's testimony, a non-suit could not have been granted.
Respondent was a negro woman living at Beaufort, and could read "a little." She had a brother, Philip Mitchell, insured with appellant, either under a sick and accident policy, with death benefit of $50, or a "straight life" policy carrying death benefit of $250. The sick and accident policy was issued Philip Mitchell on June 25, 1934, had the number 6973965, the beneficiary therein named being one, Rosa Ridley. On November 16, 1934, the beneficiary therein was changed to respondent, Maude Mitchell. On November 26, 1934, Philip Mitchell applied to and received from appellant another policy, known as a "straight life," bearing the number A 2538892, with respondent as the named beneficiary. The premium on each of the above policies was 25¢ weekly.
Respondent testified her brother lived with her at her house; that she had no knowledge that a sick and accident policy had ever been issued her brother; that when the "straight life" policy was delivered to her brother at her home he handed it to her and said, "Maude, here is the policy," and she put it in her trunk and kept it; that she paid all premiums thereon until Philip's death, the weekly payments being entered in a receipt book furnished by appellant; that every year a new receipt book was given her, and the old one destroyed; that the receipt books with the exception of the last one showed that she was paying on the "straight life" policy, and that she did not know the number of the policy on which she was paying was shown in the last receipt book different from the policy she had in her possession, until after the death of her brother on September 6, 1937, when she was informed by an agent of appellant at the time she undertook to file proof of claim under the "straight life" policy that this policy had lapsed, and that the only policy in force and effect was a sick and accident policy carrying a death benefit of $50; that the receipt book she had at the time of the death of her brother was the only one that bore a number different from the number on the policy she had in her possession. She testified, and there was corroborating testimony, that respondent's brother commenced to complain of heart trouble in December, 1935, and from January, 1936, was unable to do any work; that from time to time he was confined to his bed requiring the attention of a physician, and that the agent of appellant would see him in bed when he came to collect premiums; that the agent never offered her brother any blanks to make claims for sick benefits and her brother...
To continue reading
Request your trial