Cantey v. Philadelphia Life Ins. Co.
| Decision Date | 10 June 1932 |
| Docket Number | 13425. |
| Parties | CANTEY v. PHILADELPHIA LIFE INS. CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Richland County; M. S Whaley, Judge.
Action by J. M. Cantey, as administrator of the estate of William M Joseph, deceased, against the Philadelphia Life Insurance Company. Judgment for defendant, and plaintiff appeals.
Affirmed.
Kreps & Taylor, of Columbia, for appellant.
Thomas Lumpkin & Cain, of Columbia, for respondent.
This case was tried in the county court for Richland, Judge Whaley presiding. At the close of all the testimony, each of the litigants moved for directed verdict. After hearing argument his honor directed a verdict for the defendant. From the judgment entered upon this verdict, the plaintiff appeals.
A brief recital of the facts out of which the litigation grew is taken from the pleadings:
The complaint alleges that the defendant issued its policy No. 95875 on the 19th day of August, 1927, whereby it insured the life of William M. Joseph in the sum of $1,000 for a period of 27 years, payable upon the death of the insured at any time prior to the 19th of August, 1954, or to the insured if he be alive on that day and the policy is in force; that the policy was delivered to the insured in North Carolina; that the insured died in Columbia, S. C., on or about the 20th day of December, 1927; that demand was duly made upon the insurance company for blanks with which to make proofs of death, but defendant refused to furnish them, and refused the demand for payment of the amount of the policy.
For a first defense: The defendant admitted that the policy was issued as alleged, and that the contract was written, issued, and delivered as a contract under the laws of the state of North Carolina; that defendant has no knowledge of the date of the death of the insured, but that, if he died on the 20th day of December, 1927, the policy had lapsed for nonpayment of premiums, and was null and void.
For a second defense: That the policy was written and dated August 19, 1927, and only one quarterly premium was paid which carried the policy in force up to and including the 19th day of December, 1927, and if, as alleged by the complaint, the insured died December 20, 1927, the policy was lapsed, because no other premium was paid.
For a third defense: That the policy was written, issued, and delivered as a North Carolina contract, and is governed by the laws of that state and the decisions of the Supreme Court of that state to the effect that, the death of the insured having occurred after the policy had lapsed, no liability against the insurance company existed therein.
Plaintiff proved the application and the policy, and the death of the insured on December 20, 1927; also the receipt attached to the policy for the first quarterly premium. The defendant's counsel admitted that the policy was dated and mailed in Philadelphia August 19, 1927, to one of its agents in Winston-Salem, and that it would take such a letter five days to reach its destination and be delivered.
Defendant offered in evidence section 6287, article 3, c. 106, and section 6465, article 21, c. 106, Consolidated Statutes of North Carolina, which are as follows:
Article 3, section 6287, Consolidated Statutes of North Carolina, volume 2:
Article 21, section 6465, Consolidated Statutes of North Carolina, volume 2: "Notice of nonpayment of premium required before forfeiture. No life insurance corporation doing business in this state shall, within one year after the default in payment of any premium, installment, or interest, declare forfeited or lapsed any policy hereafter issued or renewed and not issued upon the payment of monthly or weekly premiums, or unless the same is a term insurance contract for one year or less, nor shall any such policy be forfeited or lapsed by reason of nonpayment, when due, of any premium, interest, or installment or any portion thereof required by the terms of the policy to be paid, within one year from the failure to pay such premium, interest, or installment, unless a written or printed notice stating the amount of such premium, interest, installment, or portion thereof due on such policy, the place where it shall be paid, and the person to whom the same is payable has been duly addressed and mailed, postage paid, to the person whose life is insured or the assignee of the policy, if notice of the assignment has been given to the corporation, at his or her last known postoffice address in this state, by the corporation or by any officer thereof or person appointed by it to collect such premium, at least fifteen and not more than forty-five days prior to the day when the same is payable. The notice shall also state that unless such premium, interest, installment, or portion thereof then due shall be paid to the corporation or to the duly appointed agent or person authorized to collect such premium, by or before the day it falls due, the policy and all payments thereon will become forfeited and void, except as to the right to a surrender value or paid-up policy, as in the contract provided. If the payment demanded by such notice shall be made within its time limit therefor, it shall be taken to be in full compliance with the requirements of the policy in respect to the time of such payment; and no such policy shall in any case be forfeited or declared forfeited or lapsed until the expiration of thirty days after the mailing of such notice. The affidavit of any officer, clerk, or agent of the corporation, or of any one authorized to mail such notice, that the notice required by this section has been duly addressed and mailed by the corporation issuing such policy, shall be presumptive evidence that such notice has been duly given. No action shall be maintained to recover under a forfeited policy unless the same is instituted within three years from the day upon which default was made in paying the premium, installment, interest, or portion thereof for which it is claimed that forfeiture ensued.'
Defendant offered in evidence depositions of certain of its officers to prove that the policy in question was written pursuant to the application therefor made, which was dated and executed in the state of North Carolina: That the policy was written, issued, and dated in Philadelphia, Pa., August 19, 1927; that the second quarterly premium was due on or before November 19, 1927, but was not paid on that date, nor within the grace period of the policy, which was thirty days; that the policy lapsed for nonpayment of this premium; that the company, in regular course of business, sent a premium notice to the insured to his last-known address on October 18, 1927, notifying him that the second quarterly premium would be due November 19, 1927; there was proof by defendant's general agent for North Carolina that the grace period of a policy is computed from the date when the premium is made payable under the policy until the same date of the next month, so that, when premiums fall due in months having thirty-one days, the grace period allowed is thirty-one days, and in months having thirty days and less the grace period is thirty days. The times for the payment of quarterly premiums fixed by the policy are August 19, November 19, February 19, and May 19 of each policy year.
The exceptions are eleven in number, but they cover, in differing statements, only two cardinal questions, which are: First, is this contract of insurance to be governed and construed by the laws, and the decisions of the courts of North Carolina? Second, Had the policy lapsed at the time of the death of the insured? Under these two heads, all of the vital issues made by the pleadings and the proof will be considered and determined.
Section 1 of article 4 of the Constitution of the United States provides that: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."
The defendant has offered in evidence the statute laws of North Carolina pertaining to and governing the specific questions involved in this appeal, relating to and regulating matters of insurance arising therein, Section 6287, article 3, c. 106, Consolidated Statutes of N. C., provides that:
There is no dispute that the application for insurance in the present case was taken in North Carolina; there is no dispute that the policy when issued in Philadelphia was sent to the agent of the company and delivered to the insured at his place of residence. Winston-Salem, N.C. He died at a hospital in Columbia, S. C., but there is nothing in the pleadings nor in the proof to show, or even suggest, that he had abandoned his residence in North Carolina. It is a fair inference that he retained his citizenship in that state.
In the case of Columbian Building & Loan Association v. Rice, 68 S.C. 236, 47 S.E. 63, 64, 1 Ann. Cas. 239, Mr. Justice Woods, speaking of the contract of insurance, said:
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