Cope v. Jefferson Standard Life Ins. Co

• Decision Date: 26 May 1926
• Docket Number: (NO. 11997.)
• Citation: 133 S.E. 440
• Parties: COPE . v. JEFFERSON STANDARD LIFE INS. CO.
• Court: South Carolina Supreme Court

133 S.E. 440

COPE .

v.JEFFERSON STANDARD LIFE INS. CO.

(NO. 11997.)

Supreme Court of South Carolina.

May 26, 1926.

Cothran, J., dissenting.

Appeal from Common Pleas Circuit Court of Orangeburg County; Chas. Carroll Simms, Special Judge.

Action by Lurline M. Cope, as administratrix of the estate of Walter D. Cope, deceased, against the Jefferson Standard Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John S. Bowman and Wolfe & Berry, all of Orangeburg, for appellant.

Hydrick & Whetstone and Raysor, Moss & Lide, all of Orangeburg, for respondent.

WATTS, J. This is an action upon a life insurance policy for $5,000 written upon the life of Walter D. Cope, deceased intestate; the policy was payable to his estate; and this action is brought by his wife as his administratrix. The complaint states in usual form an action upon a life insurance policy.

The defendant insurance company, by its answer, sets up the defense that the premiums were not paid when due, and that, therefore, the policy had lapsed and was forfeited at the death of the insured. In reply, the plaintiff respondent claimed that the lapse or forfeiture, if any, had been waived by the defendant appellant.

The case was tried at the November, 1923, term of the common pleas court for Orangeburg county before Special Judge Chas. Carroll Simms, with a jury, resulting in a ver-diet for the plaintiff respondent for the amount demanded, with interest, less the premium charges due upon the policy, and less indebtedness due defendant under said policy. The defendant insurance company moved for a directed verdict, and also moved for a new trial, but both motions were refused.

The exceptions raise three questions: (1) Did the court err in refusing to direct a verdict for the defendant or to grant it a new trial? (2) Did the court err in charging the jury erroneous propositions of law? and (3) Did the court err in refusing to charge the jury certain propositions of law as requested by the defendant?

We think that his honor was right in submitting the question of waiver to the jury under all the facts and circumstances of the case: The correspondence of Lyles and Lyles; Mr. Lyle's testimony; what the agent said about the "blue note" and the "yellow note, " and the note renewed; and whether the health certificate was required or not; whether the insured was misled or not.

The question whether indulgences granted the insured by the defendant constituted waiver was properly submitted to the jury. It was not a question to be determined by the court. Sparkman v. Supreme Council, 57 S. C. 16, 35 S. E. 391.

Even if no one of the facts testified to be sufficient in itself to warrant an inference of waiver, yet, if, when all are taken together, they tend to produce that result, then there was no error in submitting that question to the jury. Dantzler v. Cox, 75 S. C. 334, 55 S. E. 774; Clark v. Insurance Co., 101 S. C. 249, 85 S. E. 407. '

Provisions for forfeiture in an insurance contract are for the benefit of the insurer, and may be waived at the insurer's option. The policy is not void for breach of condition, but merely voidable. Kingman v. Insurance Co., 54 S. C. 599, 32 S. E. 762. An agent authorized to solicit insurance may waive forfeiture. Huestess v. Insurance Co., 88 S. C. 31, 70 S. E. 403. Forfeitures are not favored in the law, and courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture or any agreement to do so on which the party had relied and acted. Hartford Insurance Co. v. Unsell, 144 U. S. 439, 12 S. Ct. 671, 36 L. Ed. 496.

It is said in New Eng. Mut. Life Ins. Co. v. Springgate, 129 Ky. 627, 112 S. W. 681, 113 S. W. 824, 19 L. R. A. (N. S.) 227:

"So the question comes to this: Did the company, when the right to forfeit the policy accrued, elect to forfeit it or treat it as a subsisting obligation? If it elected then to treat the policy as a subsisting obligation, it cannot, when subsequent events made it to its interest to do so, withdraw the election it then made, and say the policy was forfeited. Forfeitures are not favored in the law. When once waived they cannot be afterwards insisted upon."

We see no error on the part of his honor as made by the exceptions.

All exceptions are overruled, and judgment affirmed.

R. O. PURDY, A. A. J., concurs.

MARION, A. J., concurs in result.

COTHRAN, J. I dissent from the conclusions announced by Mr. Justice WATTS in this case, convinced that the judgment should be reversed for the following reasons:

This is an action upon a policy of insurance issued upon the life of Walter D. Cope for $5,000, dated September 15, 1917. He died April 13, 1923. The premiums for 1917, 1918, 1919, and 1920 were paid when due by the insured. The premiums for 1921 and 1922 were not so paid, but were arranged by what is called "extension notes." On January 15, 1923, the unpaid notes for the premiums due in 1921 and 1922 were consolidated into a note dated on that day, due March 15, 1923, for $250. The defense of the company is that the policy had lapsed before the death of the insured by reason of the nonpayment of this note at maturity, and the failure of the insured to comply with the conditions of reinstatement.

The note is as follows:

"No. 54394 Cope, S. C. January 15th, 1923. On or before 15th day of March A. D. 1923, without grace and without demand or notice, I promise to pay to the order of Jefferson Standard Life Insurance Company two hundred fifty and No/100 dollars, at their home office in Greensboro, N. C, value received, with interest at the rate of six per cent, per annum.

"This note is accepted by said company at the request of the maker, together with sixty-seven and 55/100 dollars in cash, on the following express agreement:

"That, although no part of the premium due on the 15th day of September, 1922, under policy No. 54394, on the life of W. D. Cope, has been paid, the insurance thereunder shall be continued in force until midnight of the due date of said note; that, if this note is paid on or before the date it becomes due, such payment, together with said cash, will then be accepted by said company as payment of said premium and all rights under said policy shall thereupon be the same as if said premium had been paid when due; that, if this note is not paid on or before the day it becomes due, it shall thereupon automatically cease to be a claim against the maker, and said company shall retain said cash as part compensation for the right and privileges hereby granted, and all rights under said policy shall be the same as if said cash had not been paid for this agreement made; that said company has duly given every notice required by its rules or by the laws of any state in respect to said premium, and in further compensation for the rights and privileges hereby granted the maker hereof has agreed to waive, and does hereby waive, every other notice in respect to said premium or this note; it being well understood by said maker that said companywould not have accepted this agreement if any notice of any kind were required as a condition to the full enforcement of all its terms.

"W. D. Cope [Seal.]"

The premium due on September 15, 1922, was $173.10, and this, with interest, plus the amount due upon the previous extension note, with interest, amounted to $319.50. This was arranged for with cash $67.50 and the above note for $252.

On March 7, 1923, the agents of the insurance company, eight days before the note fell due, notified Cope of the approaching maturity on March 15th, and specifically called his attention to the fact that, if the note should not promptly be paid, "your policy will lapse, " as "there are no days of grace allowed in which to pay this note and according to its terms." They added, "please let us hear from you by return mail." No attention whatever was paid by Cope to this notification, and the time passed without his having paid the note.

On March 20th the agents again wrote Cope, stating that they had heard nothing from him in reference to the premium note due March 15th. They proposed to grant him a further extension upon the payment by him of $32.50 cash and the execution of a new note for $220, payable May 15th. This made up the $250 note due March 15th, with $2.50 interest. Upon his compliance the agents agreed to return the old note of $250 to him. No attention whatever was paid to this proposition by Cope. He did...