Calder v. Commercial Cas. Ins. Co

• Citation: 188 S.E. 864
• Decision Date: 14 December 1936
• Docket Number: No. 14396.,14396.
• Court: United States State Supreme Court of South Carolina
• Parties: CALDER. v. COMMERCIAL CASUALTY INS. CO.

188 S.E. 864

CALDER.
v.
COMMERCIAL CASUALTY INS. CO.

No. 14396.

Supreme Court of South Carolina.

Dec. 14, 1936.

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

Action by Joe Calder against the Commercial Casualty Insurance Company. From the judgment, the plaintiff appeals.

Remanded for new trial.

Joe P. Lane and H. M. Britt, both of Dillon, for appellant.

Cooper & Maher, of Columbia, for respondent.

FISHBURNE, Justice.

This action was brought against the defendant for the recovery of actual and punitive damages arising out of the alleged fraudulent breach of an insurance policy issued to Elva Calder, the wife of the plaintiff, on October 15, 1929. It insured her life for the sum of $50, which was payable to the plaintiff, as beneficiary; the policy also provided health insurance and hospital indemnity.

The defendant denied the breach of the contract of insurance, alleged that it had become lapsed by the nonpayment of premiums in accordance with its terms, and was not in force at the time of the death of the insured, which occurred July 4, 1932, a year after the lapse of the policy. It further denied that it had been guilty

[188 S.E. 865]

of any fraudulent or deceitful act in relation to the plaintiff or any one acting in his behalf.

The case was tried in the court of common pleas for Dillon county on July 1, 1935. Upon the conclusion of the testimony the defendant moved, (a) for a directed verdict on the whole case, and (b) for a directed verdict upon the action for punitive damages. The trial judge granted the motion as to punitive damages, but submitted the question as to actual damages to the jury, who found a verdict for the plaintiff for the death benefit of $50, less certain premiums due the company, and deducted therefrom by agreement of counsel. The plaintiff brings this appeal and assigns error in the direction of the verdict as to punitive damages.

The major issue to be passed upon is whether or not there was a scintilla of evidence to be submitted to the jury, tending to show a breach of the insurance contract, accompanied by a fraudulent act.

Under its terms, the policy required the payment of a monthly advance premium of $2. It is undisputed that premiums thereon were paid up to May 14, 1931, which maintained the policy in force until on or about June 20, 1931. There is a conflict of evidence as to whether or not a further payment was made on June 19, 1931. The plaintiff's daughter testified that on that day she gave to...