Blackmon v. United Ins. Co.

• Decision Date: 17 December 1959
• Docket Number: No. 17597,17597
• Citation: 235 S.C. 335,111 S.E.2d 552
• Court: South Carolina Supreme Court
• Parties: Annie Belle BLACKMON, Respondent, v. UNITED INSURANCE COMPANY, Appellant.

Page 552

111 S.E.2d 552

235 S.C. 335

Annie Belle BLACKMON, Respondent, v. UNITED INSURANCE COMPANY, Appellant.

No. 17597.

Supreme Court of South Carolina.

Dec. 17, 1959.

Paulling & James, Darlington, for appellant.

Walker E. Anderson, Hartsville, for respondent.

LEGGE, Justice.

On a former appeal, 233 S.C. 424, 105 S.E.2d 521, we affirmed a circuit court order construing the complaint in this action as stating a cause of action for fraudulent breach of a contract of life insurance accompanied by fraudulent act. Trial, at the December, 1958, term, before the Honorable James Hugh McFaddin, Presiding Judge, and a jury, resulted in a verdict for the plaintiff in the amount of two hundred ($200) dollars actual and five hundred ($500) dollars punitive damages. Appellant contends that the trial judge erred:

1. In submitting the issue of punitive damages to the jury;

2. In submitting the issue of actual damages to the jury; and

3. In permitting oral testimony for the plaintiff to the effect that after the death of the insured an agent of the defendant had stated to the beneficiary that upon surrender of the policy, the receipt book, and the proofs of death, she would be paid two hundred dollars.

Upon the written application of Chesley Blackmon, wherein he stated that he had been born on January 24, 1913, appellant issued, on February 2, 1953, its policy of insurance on his life. The weekly premium was seventy cents; the death benefit, two hundred dollars; the designated beneficiary, the insured's mother, Annie Belle Blackmon, respondent here.

The insured died on October 28, 1957. The proofs of death as furnished by the beneficiary to appellant consisted of:

(a) Claimant's certificate, signed by the beneficiary's mark and sworn to before a notary public on October 31, 1957. On this certificate the date of the insured's birth was left blank.

(b) Undertaker's certificate, stating among other things that the age of the insured as given on the burial permit was fifty-one.

(c) Physician's certificate, dated October 29, 1957, stating among other things that the date of the insured's birth was March 2, 1906, and his age at death fifty-one.

(d) Certified copy of Certificate of Death, upon which the date of the insured's birth was stated as March 2, 1906, and his age on last birthday fifty-one years.

It is undisputed that if the insured's true age was as shown on the proofs of death the amount of insurance that the premium stated in the policy (seventy cents weekly) would have purchased would have been $150; that on or about November 5, 1957, appellant issued and delivered to respondent its check for that amount less seventy cents premium arrears, or $149.30; and that respondent endorsed that check and retained it until November 14, 1957, when her attorney returned it to appellant with his letter advising that this action was being brought. With its answer, appellant tendered said amount in full settlement of its liability under the policy.

Millie Blackmon, Chesley's widow, testified: that she and her husband lived with his mother; that she (Millie) could neither read nor write; that she did not know her own age or that of her husband; and that she had never given information to anyone concerning her husband's age. She said that Chesley died on a Monday morning, and that later that day a Mr. Gainey, appellant's agent, came to collect the weekly premium; and that upon being informed of Chesley's death, he told her and Annie Belle to 'get up the papers, receipts and everything' and that he would come back in a day or two and pick them up; and that he did return on the following Thursday and 'picked them up'. Over objection of appellant's counsel, she testified that on that Thursday, when Mr. Gainey came to get the papers, she heard Annie Belle Blackmon say to him: 'When I give you them, you sure you going to bring me the two hundred dollars back?' And that Mr. Gainey replied: 'That's what the policy calls for.' She further testified that two days later he came back and brought a check for a hundred and forty-odd dollars. Also, that she saw him late the following Monday evening and told him that if he would give back the receipt book and other papers she would send him back the check; and that he had declined this proposal, saying that the payment that had been made was all that the policy called for.

Annie Belle Blackmon, who is illiterate, testified, over objection of appellant's counsel, that when Mr. Gainey came for the papers he 'just told me to give him the papers and the book and he'd come back Saturday morning or Friday morning and he'd bring me my two hundred dollars.'

Over like objection, Mozelle Blackmon Jacobs, one of the children of Chesley and Millie, testified that on said occasion Mr. Gainey 'told grandma to get her policy and papers ready and he would take them back with him and he would bring her two hundred dollars.'

The foregoing is, in substance, the testimony for the plaintiff. Proof of fraudulent intent accompanied by a fraudulent act was necessary to support the verdict for punitive damages. In our opinion the testimony here affords no basis for such verdict.

Section 37-161 of the 1952 Code, which limits to a period of two years after the issuance of a policy of life insurance the time within which an insurance company may dispute the truth of the application, proceeds as follows: 'But when the age of the person insured * * * has been misstated the company may at any time adjust any amount payable or benefit accruing under the policy to such as the premiums would have purchased at the true age * * * of such insured.' Section 37-147 forbids discrimination by an insurance company in favor of any individual insured of the same class and risk, whether such discrimination be with regard to the amount of premium charged or the amount of benefits payable. These statutory provisions are binding upon the insurer, the...