Brown v. Pilot Life Ins. Co.
| Decision Date | 14 December 1937 |
| Docket Number | 14585. |
| Citation | 194 S.E. 121,185 S.C. 334 |
| Parties | BROWN v. PILOT LIFE INS. CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Sumter County; C. C Featherstone, Judge.
Action by J. Cliff Brown against the Pilot Life Insurance Company. From a judgment for the plaintiff, the defendant appeals.
Affirmed.
Epps & Epps, of Sumter, for appellant.
Raymon Schwartz, of Sumter, for respondent.
This case turns upon the question of whether or not the balance of an insurance premium, amounting to $11.22, due August 14 1935, on the policy in suit, was paid within due time. The defendant, alleging that it was not so paid, contends that the policy lapsed for nonpayment, and may not be reinstated without satisfactory evidence of insurability on the part of the insured. The action was commenced by the plaintiff against the defendant on March 26, 1936, to have the court adjudge the policy issued by the appellant, covering the life of the respondent, in full force and effect. The policy carried also what is known as a permanent and total disability clause.
The cause was referred to the master for Sumter county, who found for the plaintiff, and recommended that the court declare the policy in full force. Upon appeal to the circuit court this report was confirmed in a formal order. The matter now comes before us upon exceptions to this order.
The policy in question specifically provided that "Premiums are payable at the home office of the company but may be paid on or before the dates due to the company's agent in exchange for the company's official receipt, signed by one of the officers referred to below, and countersigned by the agent."
The testimony tends to prove that the insured sent his check for the amount of the premium to the office of the local agent in the city of Sumter, on August 14, 1935, about 4 o'clock in the afternoon, but there was no one in the office to receive the payment at that time. The check was carried to the local office by the son of the insured, who found the door locked, whereupon he returned the check to his father. About 8:30 o'clock p. m. on the same day, this check was mailed by the plaintiff in a mail box near his home, in the city of Sumter, sealed in an envelope, properly stamped, and addressed to the defendant's local agent in that city. This letter containing the premium check was not received by the local agent until August 21, 1935, seven days after its mailing. The testimony is silent as to the date of the postmark on the envelope, but the check was dated August 14 1935, and was made payable to the local agent. On August 23, 1935, the respondent received a letter from the defendant, notifying him that his policy was canceled for nonpayment of the premium due on August 14th.
The testimony shows that the office of the local agent in Sumter was open daily from 8:30 o'clock a. m. to 12 o'clock m., and from 1:30 o'clock p. m., to 3:45 o'clock p. m., but it is inferable from the testimony that this office was closed for the day, and locked, at the time the plaintiff sent the premium check in question by his son. The following testimony of Mrs. Monsen, bookkeeper and clerk in the office of the local agent, shows the custom and usage followed by the defendant in accepting insurance premiums from policyholders in Sumter:
" Q. A person then could not pay his premium at five in the afternoon or four-thirty of the last day and be in the grace period, could he? A. If he went to the office and nobody was there, he could not. He could drop it in the postoffice.
Q. It was dropped in the postoffice, you heard that? A. Yes, sir.
Q. As a matter of fact, at four-ten on an afternoon in question, where it was the last day in question, you were not at the office to take the premium? A. I was not at the office.
Q. Of course, if it was mailed in a letter box, it would be the same as delivery to you? A. That is what they customarily do.
Q. You have received money on the day after the premium fell due, marked on the last day of grace, and you accepted those on the following day as payment when due? A. Yes, sir.
Q. For instance, if a person mailed a check on the 14th day of August and the last day for paying that premium is the 14th day of August, and it is not received until the 15th, is it your custom to accept it as payment as of the 14th? A. If the letter is postmarked that date and we get it the next day, we can accept it.
Q. If this particular check had been placed in an envelope on the 14th and mailed, and was stamped at the postoffice and you received it on the morning, of the 15th, would you have accepted it? A. I would accept it, certainly, and put it collected as of the 14th. * * *
Q. Does the company know you postdate it on your books and that you received the check on the 15th? A. If it is postmarked on the last day of grace, we can accept it. The company will accept it, if we get it the day after it is postmarked."
In addition to this testimony showing custom and usage, this appears from a letter introduced in evidence, written by the local agent to the defendant: "We held the policy open until the 17th, and sent it in for cancellation." As further tending to show the custom which prevailed between the parties with reference to the payment of premiums, the plaintiff testified that he sometimes made the premium checks payable to B. L. Williams, agent, and sometimes payable to Pilot Life Insurance Company, "but I mailed them to Mr. Williams irrespective of how made out." And Mr. Williams, the local agent, testified that "during the day of the 14th I called Mr. Brown over the telephone and told him his insurance was due and he said he would mail or send a check that day." There is also evidence in the record showing other instances of delay and delinquency on the part of the local postal employees in collecting letters from the drop letter mail boxes in Sumter.
As heretofore stated, the prime question presented is whether or not the circuit court erred in holding that the premium check was paid within due time.
We may say in passing that the check in question was good, was presented by the...
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