Crosswell v. Connecticut Indem. Ass'n

• Decision Date: 14 March 1898
• Citation: 29 S.E. 236,51 S.C. 469
• Parties: CROSSWELL et al. v. CONNECTICUT INDEMNITY ASS'N.
• Court: South Carolina Supreme Court

29 S.E. 236

51 S.C. 469

CROSSWELL et al. v. CONNECTICUT INDEMNITY ASS'N.

Supreme Court of South Carolina

March 14, 1898

Appeal from common pleas circuit court of Sumter county; W. C Benet, Judge.

Action by John Crosswell and another against the Connecticut Indemnity Association. Judgment for plaintiffs. Defendant appeals. Affirmed.

The complaint and third defense of answer are as follows:

Complaint "The plaintiffs above named complain of the defendant above named, and allege: (1) That the defendant above named is a corporation duly chartered under the laws of the state of Connecticut, under the name of the Connecticut Indemnity Association, and, at the times hereinafter mentioned, was conducting its corporate business in this state by and through its officers duly authorized thereto. (2) That, at the times hereinafter mentioned, the plaintiffs were, and now are, residents of the said county of Sumter and state of South Carolina, and that the cause of action hereinafter mentioned arose within the said state of South Carolina. (3) That on the 31st day of August, 1893, at Eastover, in said state, in consideration of the payment to it of the premium of $43.20 by Mrs. Susan U. Crosswell, the said defendant, by its officers and agents duly authorized thereto, made and delivered to said Susan U. Crosswell its policy of insurance numbered 12,360, in the sum of $1,000, bearing said date, and did thereby insure the life of the said Susan U. Crosswell against death during the period of twelve months from said 31st August, 1893, and did thereby promise to pay the said sum of $1,000, with the cumulative additions, as provided in and by the terms of said policy, less any indebtedness due said association on account of said policy, within ninety days after receipt of satisfactory proofs, made out on its own blanks, of the death of said Susan U. Crosswell, the insured, during the continuance of said policy in force, all of the conditions having been complied with, to John and Arthur Crosswell, her sons, equally, if living, otherwise to the executors, administrators, or assigns of the said insured. (4) That the plaintiffs herein are the said John and Arthur Crosswell, the sons of the said Susan U. Crosswell the insured, under said policy. (5) That the said policy was continued in force from year to year by the payment of the premiums therein required, and was in full force and effect at the time of the death of the said Susan U. Crosswell, hereinafter mentioned. (6) That on or about the seventh day of January, 1896, the said Susan U. Crosswell departed this life, leaving, surviving her, her said sons, the plaintiffs herein. (7) That said Susan U. Crosswell, prior to her death, duly fulfilled all the conditions of said insurance on her part. (8) That in compliance with the provisions of said policy, and within ninety days after the death of the said Susan U. Crosswell, these plaintiffs notified the defendant herein of said death loss, and demanded from said defendant blank proofs of the loss whereon to make out proofs of said loss, as required by said policy; but that this demand was refused by said association, and these plaintiffs have duly fulfilled all the conditions of said insurance on their part. (9) That these plaintiffs have made demand upon said association, defendant, for the payment to them of the said sum of $1,000, and the cumulative additions, as provided in said policy, more than ninety days having elapsed since the death of said Susan U. Crosswell, which payment has been refused by the defendant, and no part of the same has been paid. On the contrary, the defendant claims that said insurance is void, and denies all liability under said policy, and has refused to pay the same or any party thereof. Wherefore the plaintiffs above named demand judgment against the defendant above named for the said sum of $1,000 and the cumulative additions, as provided in said policy, and the interest thereon from the said seventh day of January, 1896."

Third defense of answer: The third defense was identical with the second down to the following point, where it proceeded as follows: "That the said policy was issued upon the condition that the provisions and requirements printed or written by the said association upon the back of the said policy were accepted by the said Susan U. Crosswell as part of the contract was fully as if they were recited at length over the signatures of the president and secretary of the said association affixed to the said policy; that among the provisions and requirements so as aforesaid printed by the said association on the back of the said policy, and so as aforesaid accepted by the said Susan U. Crosswell as part of the contract of insurance evidenced by the said policy, were provisions in the words following, that is to say: '(1) The application on the faith of which this policy issues is hereby referred to and made part of this contract. *** (2) The insured further agrees and accepts this policy upon the express condition that, if any payment (after the first) is not made to the association within ten days after the same is due, then this policy shall be null and void, and of no effect, and all payments which shall have been made to the association on account of this policy shall be forfeited, and no person shall be entitled to damages, or the recovery of any money paid for protection while this policy was in force. *** (3) All payments are due at the home office of the association, in the city of Waterbury, on the date named in this policy, but will be accepted elsewhere when duly made in exchange for a receipt signed by the president or secretary and payment made to any person, except in exchange for such receipt, will not be recognized by the association, or be deemed by either party as a valid payment. If for any reason a payment be received later than ten days after it becomes due, it is upon the express condition that the insured is at the time of the receipt of such payment in good health, and of correct, sober, and temperate habits; and, if the fact is otherwise, the policy shall not be put in force by such receipt, and such receipt must, in every case, be understood by the parties as an act of courtesy on the part of the association, and in no case as constituting any obligation to waive the payment of a future premium, when due. *** (4) *** If the conditions of this policy shall not be in all respects observed and performed by the insured, then in all such cases this policy shall be null and void, and of no effect, and no person shall be entitled to damages or the recovery of any moneys paid thereon.' That in and by the said application, so, as aforesaid, made a part of the said policy or contract of insurance, it was declared, stipulated, agreed, and warranted by the said Susan U. Crosswell, among other things, in words following, that is to say: 'If I or any of my representatives shall omit or neglect to make any payment as required, in respect of amount, place, and time of payment by the conditions of such policy, then the policy to be issued thereon shall be null and void, and all money paid thereon shall be forfeited to said association. And it is further agreed that the membership hereby applied for shall be subject only to the conditions and agreements contained in the policy of insurance to be issued hereon.' (4) The defendant, denying the allegations contained in paragraphs 5, 7, and 8 of the said...