Bellamy v. Grand Lodge, K.P.

• Decision Date: 19 July 1918
• Docket Number: 10048.
• Citation: 96 S.E. 293,110 S.C. 315
• Parties: BELLAMY v. GRAND LODGE, K. P.
• Court: South Carolina Supreme Court

96 S.E. 293

110 S.C. 315

BELLAMY v. GRAND LODGE, K. P.

No. 10048.

Supreme Court of South Carolina

July 19, 1918

Appeal from Common Pleas Circuit Court of Charleston County.

Action by Hattie Bellamy against the Grand Lodge, Knights of Pythias. From a judgment for plaintiff, defendant appeals. Affirmed.

Jacob Moorer, of Orangeburg, for appellant.

Lee Royall, of Charleston, for respondent.

HYDRICK J.

This was an action on a policy of insurance issued by the defendant on the life of plaintiff's husband. Defendant admitted having issued the policy, and set up the defense that, at the time of his death, insured was not a member of the order in good standing, because he had been suspended for nonpayment of dues. From judgment for plaintiff, defendant appealed.

There is no merit in the first exception, which assigns error in allowing plaintiff to testify that insured was her husband. The objection was made on the ground that the testimony was obnoxious to section 438 of the Code of Civil Procedure which prohibits a party testifying to any transaction or communication with a person deceased, "as a witness against a party then prosecuting or defending the action as executor, administrator, heir at law, next of kin, assignee legatee, devisee, or survivor of such deceased person." Without considering any other ground, it is enough to say that defendant was not defending in any of the relations mentioned in the statute. Norris v. Clinkscales, 47 S.C. 488, 25 S.E. 797.

The second exception assigns error in refusing the motion for a nonsuit at the close of plaintiff's testimony. The case of Sternheimer v. Order U. C. T A., 107 S.C. 291, 93 S.E. 8, shows that the motion was properly refused. In Pearlstine v. Insurance Co., 70 S.C. 75, 49 S.E. 4, the court said:

"In such cases, the motion for nonsuit or to direct a verdict should be made at the close of all the testimony."

The third exception assigns error in the charge as follows:

"Now, the laws of our state do not favor waivers, and if a man can make out a case at all against an insurance company, they say they ought to pay it. Forfeitures are not favored in law, and courts are always prompt to seize hold of any circumstance that induces an election to waive a forfeiture or an agreement to do so, upon which the party has relied and acted. Any agreement, declaration, or course of action on the part of an insurance company which leads a party insured honestly to believe that, by conforming thereto, a forfeiture of his policy will not be incurred, followed by due conformity on his part, will and ought to estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract."

The error assigned is that:

"The question of waiver is not raised by the pleadings

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