Brown v. United Ins. Co. of America

• Decision Date: 16 March 1977
• Docket Number: No. 20385,20385
• Citation: 268 S.C. 254,233 S.E.2d 298
• Court: South Carolina Supreme Court
• Parties: Jackie BROWN, Appellant, v. UNITED INSURANCE COMPANY OF AMERICA, Respondent.

Page 298

233 S.E.2d 298

268 S.C. 254

Jackie BROWN, Appellant, v. UNITED INSURANCE COMPANY OF AMERICA, Respondent.

No. 20385.

Supreme Court of South Carolina.

March 16, 1977.

Kenneth M. Suggs and Philip E. Wright, Lee & Suggs, Columbia, for appellant.

Philip Wittenberg, of Levi, Wittenberg & Abrams, Sumter, for respondent.

GREGORY, Justice:

Appellant Brown sued respondent United for fraud and deceit in connection with the sale of a health insurance policy. At the pretrial conference the trial judge granted United's oral demurrer and "motion for judgment on the pleadings and upon the record" (quoted from the agreed statement of the case). The issue is whether the trial judge erred in considering matters outside the face of the complaint and amended complaint. We find no error and affirm.

In his complaint and amended complaint, Brown alleged that an agent of United had sold him a health insurance policy with knowledge that he, Brown, was a paraplegic. The agent had told him he would be covered by the policy; he had later learned from another agent of United (not identified in the record) that he had not been covered by the policy and had never been intended to be; he then had stopped paying premiums.

United denied these allegations, except for the fact of the sale and the termination of payments.

At the pretrial conference, counsel for Brown admitted that Brown had received the policy, had never had an occasion to file under the policy, and in fact had never filed a claim. Counsel admitted that Brown had paid premiums of $3.50 per week for 25 weeks. It was undisputed that Brown had not referred to his paraplegia in his insurance application.

The trial judge, considering the "relevant allegations of the Amended Complaint and of the Amended Answer", and the facts of delivery of the policy and lack of necessity of filing under the policy, decided that the principles of Branham v. Capital Life and Health Insurance Co., 220 S.C. 67, 66 S.E.2d 451 (1951), controlled, and dismissed the action.

We agree that Branham is controlling. In that case the Court disallowed an action for fraud and deceit brought pursuant to facts similar to those here.

We need only decide whether the judge improperly considered facts not appearing in the complaint. A motion for judgment on the pleadings is in the nature of a demurrer, Jones v. Massengale, 251 S.C. 456, 163 S.E.2d 217 (1968), and will be granted "when, under the admitted facts, the moving party would be entitled to judgment on the merits, without regard to what the findings might be on the facts on which issue is joined." Wooten v. Standard Life & Casualty Insurance Co., 239 S.C. 243, 248, 122 S.E.2d 637, 639 (1961). A judgment on the pleadings against the plaintiff is not proper if there is an issue of fact raised by the complaint, which, if resolved in favor of the plaintiff, would entitle him to judgment. Wooten v. Standard Life and Casualty Insurance Co., supra.

The trial judge said in his order, "I . . . conclude that neither in fact nor in law has the plaintiff alleged, nor could he sustain, with proof of the facts I was required to assume in his favor, a cause of action for damages for fraud and deceit" (emphasis added).

We find no error in the...