Calder v. Commercial Cas. Ins. Co.

• Citation: 188 S.E. 864,182 S.C. 240
• Decision Date: 14 December 1936
• Docket Number: 14396.
• Parties: CALDER v. COMMERCIAL CASUALTY INS. CO.
• Court: United States State Supreme Court of South Carolina

188 S.E. 864

182 S.C. 240

CALDER v. COMMERCIAL CASUALTY INS. CO.

No. 14396.

Supreme Court of South Carolina

December 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 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 the rural mail carrier $2 with which to purchase a post office money order payable to Commercial Casualty Insurance Company, with instructions to place it, together with a letter addressed to the company, and the premium receipt book, in an envelope furnished by and addressed to the defendant, and mail the same. The records in the local post office at Latta show that a money order for this amount was issued on that date payable to the defendant, which the defendant denies having received. The rural mail carrier did not testify, so that there is no positive evidence that the letter addressed to the defendant, containing the money order and the premium receipt book, was actually deposited in the post office properly stamped for mailing. However, there was introduced in evidence a letter under date of February 4, 1935, addressed to Joe Calder, the plaintiff, from the United States Post Office Department, informing him that there was nothing of record to show that the post office money order referred to was outstanding, and the department therefore presumed that the amount had been duly paid. This letter went on to state that "as paid money orders are destroyed after the expiration of three years * * * it is regretted that it will be impossible to furnish you with a photostat of the paid voucher."

The record discloses that the plaintiff received from the defendant health and hospital payments upon claims duly filed, amounting to $87.50, growing out of illnesses suffered by her between April 3, 1931, and May 26, 1931, and that she died after a lingering illness on July 4, 1932, one year after the lapse of the policy.

Elva Calder, the insured, applied for the policy of insurance through a local insurance agent of the defendant, and, according to the testimony for plaintiff, the insurance agent impressed upon the insured, and the plaintiff (designated therein as the beneficiary), the importance of sending the receipt book to the company with each monthly remittance of the premium. The plaintiff says that he and his wife were told that if this receipt book should not be forwarded with the remittance, they would not be given credit for the payment of the premium, and the policy would become null and void.

This action was brought upon the refusal of the defendant to pay the death claim of $50, such refusal being based upon the ground that the policy had lapsed for the nonpayment of premiums on...