Brown v. Volunteer State Life Ins. Co.

• Decision Date: 24 May 1948
• Docket Number: 16082.
• Parties: BROWN v. VOLUNTEER STATE LIFE INS. CO.
• Court: South Carolina Supreme Court

48 S.E.2d 507

212 S.C. 537

BROWN v. VOLUNTEER STATE LIFE INS. CO.

No. 16082.

Supreme Court of South Carolina

May 24, 1948

Thomas, Cain & Black, of Columbia, for appellant.

C T. Graydon, F. Ehrlich Thomson and J. Bratton Davis, all of Columbia, for respondent.

TAYLOR, Justice.

This appeal involves a case tried by the Richland County Court before Honorable Legare Bates and a jury at the May, 1946 term. The action seeks to have a policy of insurance on the life of William Jones Brown reformed so as to strike therefrom a War and Aviation Clause and to recover on the policy as reformed. The Complaint alleges that the War and Aviation Clause was falsely and deceitfully inserted in the policy in violation of an agreement entered into by and between the insured, William Jones Brown, and defendant's agent; and that the inclusion of the clause in the policy was never called to the attention of the insured. This action is by the beneficiary of the policy, the father of the insured. It appeared, without contradiction, that the insured died as a result of an airplane accident sustained at Eagle Pass Texas, while the insured was a member of the armed forces. A verdict was returned for plaintiff.

At appropriate times, the defendant made motions for non-suit directed verdict and for judgment notwithstanding the verdict and for new trial, all of which were refused by the trial Court.

The transcript reveals eleven exceptions, which however, appellant concedes raise only three questions namely (1) whether the Court erred in failing to grant appellant's motions for non-suit, directed verdict and judgment notwithstanding a verdict; (2) whether the Court erred in allowing interest; and (3) whether the Court erred in settling the case for appeal.

It appears from the record that a brother of the insured, H. A. Brown, Jr., in the fall of 1941 (several months prior to the issuance of the policy here involved), applied to the defendant company, and received from it a policy on his, H. A. Brown's, life which did not contain the War and Aviation Clause. Being interested in having his brother procure a like policy on the brother's life, H. A. Brown and the agent of the defendant company prepare and forward to William Jones Brown, who resided in Decatur, Alabama, an application for the signature of William Jones Brown. This application, being for a non-medical examination policy, the company refused to issue the policy on that application. The record gives some indication that the policy that H. A. Brown had in view at the time of the making of this application was without the War and Aviation Clause, but the record is bare of any indication that H. A. Brown informed his brother of this fact. In the meantime, the first application having been refused by the company, William Jones Brown moved to Columbia, and a new application was made by him direct to the local agent of the defendant company. H. A. Brown testified (pages 56-59, Tr.) that he knew nothing of this second application. In the second application, there was no reference to a War and Aviation Clause, but this application contained space for 'Home office corrections or additions,' and contained an agreement at the bottom 'That any acceptance of any policy issued on this application, whether or not upon the form applied for herein, will constitute a ratification by me of any change in the form of the policy or correction in or addition to the application made by the company in the space above headed 'Home office corrections or additions', photostatic copy of which attached to the policy constitutes sufficient notice to me of the change made.'

Upon receipt of this second application at the home office of the defendant company, there was inserted in the blank entitled 'Home office corrections or additions' the following 'Issued with War and Aviation Clause. Special incontestable clause.' When issued, the policy contained a War and Aviation Clause, set forth in large type, which the most casual examination of the policy would have disclosed. The policy was delivered to either Henry A. Brown, brother of the insured, or to William Jones Brown, the insured, and was by one of them transmitted to the beneficiary named in the policy, namely, Henry...