Bradley v. Washington Fidelity Nat. Ins. Co.

• Decision Date: 11 October 1933
• Docket Number: 13700.
• Citation: 171 S.E. 243,170 S.C. 509
• Parties: BRADLEY v. WASHINGTON FIDELITY NAT. INS. CO.
• Court: South Carolina Supreme Court

171 S.E. 243

170 S.C. 509

BRADLEY v. WASHINGTON FIDELITY NAT. INS. CO.

No. 13700.

Supreme Court of South Carolina

October 11, 1933

Appeal from Common Pleas Circuit Court of Allendale County; E. C Dennis, Judge.

Action by Evaline Bradley against Washington Fidelity National Insurance Company. Judgment for plaintiff, and defendant appeals .

Affirmed.

Searson & Searson, of Allendale, and Tobias & Turner, of Columbia for appellant.

Louis Harley, of Allendale, and T. M. Boulware, of Barnwell, for respondent.

BLEASE Chief Justice.

This case, in the court of common pleas for Allendale county while commenced on June 15, 1928, was not tried until April 29, 1931, and the appeal did not reach this court soon enough to be heard earlier than the June, 1933, term.

The plaintiff, in her complaint, alleged the breach by the defendant, accompanied with fraudulent conduct, of an insurance contract, and she claimed actual damages in the sum of $48, and punitive damages in the sum of $2,950. In her complaint, she said that some time in 1926, the defendant issued to her a policy, wherein it was provided that she should pay to the company a premium of 30 cents per week, and that, in consideration therefor, the company agreed to pay her "a benefit for sickness or accident of Six ($6.00) Dollars per week for accidental injury and sickness caused by such injury"; that in July, 1927, while the policy was in full force, the plaintiff was accidentally shot, wholly disabled, made sick, and was confined to her bed for twelve weeks, being visited during those weeks by a physician; that she performed all the conditions of the policy; that, under the terms of the policy, she was entitled to the sum of $72; that, during the third week of her illness, the company paid to her the sum of $12, weekly benefits for the first two weeks of illness, and at that time collected from her the sum of 60 cents as premiums on the policy for the following two weeks; that the agent in charge of collections of the premiums from the plaintiff, who had been in the habit of visiting her home for the purpose of making such collections, thereafter avoided coming to the plaintiff to get the premiums, and during those times the company owed the plaintiff much more on the sick benefits than she was due the company for the premiums; that, finally, in March, 1928, Ford, one of the defendant's agents, visited the plaintiff in connection with the policy and the amount due to her thereunder; that, 'for the purpose of stealing for the defendant from the plaintiff" the sum of $48, due her by the company, in a "high-handed, oppressive, fraudulent, wilful" manner, the agent, who was well acquainted with the terms of the policy, falsely and fraudulently informed the plaintiff that she was not entitled, under its terms, to receive more than the sum of $12; and that the plaintiff, who was an uneducated and very ignorant negro woman, being unacquainted with her rights, through the fraudulent representations and conduct of the agent, accepted from him the sum of $12 and surrendered to him the policy, and thereby she was overreached and defrauded.

In its answer, served about fifteen months after the summons and complaint had been served, the time having been extended for its filing, the defendant denied all the material allegations of the complaint. But it admitted the execution and delivery of the policy involved in the suit. It further alleged, as a defense, that the claims for the benefits made by the plaintiff had been paid in full, and it further defended on the ground that the plaintiff, by a duly executed release in writing, for valuable consideration, had discharged the defendant from any and all rights or claims under the policy.

Replying to the answer, some seventeen months later, and about one week before the trial of the cause, the time for reply not being questioned, the plaintiff said, if a release of any kind had been executed by her, that it had been obtained by the fraudulent conduct of the defendant's agent. She alleged that the $12 paid to her, and more, was due her under the terms of the policy, and if the defendant held a properly executed release of her claims, that the same had been obtained through the fraudulent conduct of the agent. Her attorneys, by written notice to the attorneys for the defendant, about the time of the serving of the reply, offered to return, and tendered to the attorneys for the defendant, the sum of $12, claimed by the defendant to have been paid to the plaintiff in consideration of the release, which tender was refused.

In the trial, the testimony of the plaintiff bore out the allegations of her complaint as to her injury and illness therefrom; the payment of $12 by the company for two weeks' sick benefit, at $6 per week; the failure of the agent to visit her home for a long period of time thereafter, although he was continually in the neighborhood soliciting business and collecting premiums from others, upon numerous occasions passing right near by her door; that, finally, the agent, Ford, did call upon her with regard to a settlement of her claim, and that by his fraudulent and false statements as to the amount she was entitled to receive, she, trusting and believing in his representations, accepted $12, although she learned afterward that she was entitled to the sum of $48 more; and that, upon the false and fraudulent representations of the agent, she surrendered her policy to him.

Although Ford, the company's agent, was present in the court, there was no denial by him of the testimony of the plaintiff and no evidence in the company's behalf was offered.

The verdict of the jury, and the judgment entered thereupon, were in favor of the plaintiff for $48 as actual damages, and $1,475 as punitive damages.

In the review of the trial in the lower Court, which we are asked to make by the defendant, eleven exceptions are presented.

The third, fifth, seventh, and eighth exceptions, relating to the refusal of the trial judge to grant a nonsuit or directed verdict in the defendant's favor, appear to us to be based upon the position that there was noncompliance with the terms of the insurance policy on the part of the plaintiff, the insured; in other words, that there was a forfeiture on the part of the plaintiff. It is not proper to consider these exceptions; the defendant not having pleaded forfeiture in its answer, and no question thereabout having been raised, so far as we are able to find, in the trial. See Dwyer v. Metropolitan Life Insurance Co., 132 S.C. 10, 129 S.E. 84. If forfeiture had been pleaded, however, or if the appellant thinks it was pleaded, it is, nevertheless, clear that there should not have been a nonsuit or directed verdict in the defendant's favor on that ground, for, under the evidence in the case, there was considerable proof as to waiver on the part of the insurer of any forfeiture claimed to have occurred.

The testimony very clearly showed that the company, having at the time knowledge of the character and the extent of the plaintiff's injury and illness, accepted and retained in its possession, without question, claims for benefits under the policy that had been filed. And also, without raising any question as to the proper filing of the claims, the company sent its agent to the home of the plaintiff for the purpose of procuring a settlement and release.

We are also of the opinion that we should not consider subdivision (a) of the eleventh exception, which complains of the refusal of the trial judge to grant the defendant's motion for a new trial, "because the amount of the verdict as to actual damages was incorrect, no premiums for the extended period of enforcement having been deducted therefrom" Our reason for declining to entertain that ground of the appeal is due to the fact that we do not find in the record anything to show that the question was raised in the lower court. This court has repeatedly held that exceptions raising questions not before the trial court will not be considered in an appeal. Harper v. American Railway Express Co., 139 S.C. 545, 138 S.E. 354; Ex parte McLeod, 140 S.C. 1, 138 S.E. 355; White v. Railway Co., 142 S.C. 284, 140 S.E. 560, 57 A. L. R. 634.

The first, second, and fourth exceptions, grouped in appellant's argument under the heading "Necessity for tender of rescission," and its tenth exception, complaining of error in the trial judge's charge on the matter of tender, may be considered together.

The first of these exceptions charges error in overruling the defendant's demurrer to the plaintiff's reply, for the reason that therein there was no allegation of "tender of a return of the consideration of the release prior to the commencement of the action." The second and fourth exceptions are to the effect that there was error in refusing the motion for a nonsuit because the plaintiff had retained, and had not tendered the return of, the consideration for the release she had executed. The tenth exception questions...