Cunningham v. Independence Ins. Co.

• Decision Date: 08 February 1937
• Docket Number: 14432.
• Citation: 189 S.E. 800,182 S.C. 520
• Parties: CUNNINGHAM v. INDEPENDENCE INS. CO.
• Court: South Carolina Supreme Court

189 S.E. 800

182 S.C. 520

CUNNINGHAM v. INDEPENDENCE INS. CO.

No. 14432.

Supreme Court of South Carolina

February 8, 1937

Appeal from County Court of Richland County; A. W. Holman, Judge.

Action in tort by Dora Cunningham against the Independence Insurance Company. From orders denying defendant's motion for a nonsuit on the merits and granting plaintiff's motion for a voluntary nonsuit, defendant appeals.

Reversed and remanded.

Price & Poag, of Greenville, and Cooper & Maher, of Columbia, for appellant.

Jennings & Jennings, of Columbia, for respondent.

BAKER Justice.

This is an action in tort for the alleged cancellation and breach of a contract of insurance issued respondent by the Liberty Life Insurance Company of Greenville, S.C. The complaint alleges that the original policy was issued to the respondent on the 19th day of September, 1927, and that thereafter, on or about September 1, 1930, the appellant, after having purchased the sick and accident business of the Liberty Life Insurance Company, canceled the policy by issuing a policy in the Independence Insurance Company (appellant herein), which was not of equal value with the original policy. The answer of appellant was a general denial.

When the case was called for trial in the county court of Richland county, counsel for the appellant moved the court to require the respondent to elect whether she would proceed on the cause of action for fraudulent breach of contract or on the cause of action of fraud and deceit. Counsel for the respondent stated that respondent elected to proceed on the cause of action for breach of contract, accompanied by an act of fraud.

While the respondent was on the stand under cross-examination, and before the cross-examination had been concluded, counsel for respondent asserted his intention to take a voluntary nonsuit. Appellant objected to the voluntary nonsuit claiming the right to complete the cross-examination of respondent, which was allowed, and at the conclusion of respondent's cross-examination moved for a nonsuit upon the merits. After considerable discussion and argument, the court refused appellant's motion for a nonsuit upon the merits, and thereafter granted respondent a voluntary nonsuit as a matter of law, holding that the respondent had the right to a voluntary nonsuit as a matter of law.

This appeal raises two issues:

(1) Did the trial judge err in refusing to grant the motion of the appellant for a nonsuit, founded on the ground that there was no evidence to support the respondent's alleged cause of action?

(2) Did the trial judge err in granting respondent's motion that she be permitted to take a voluntary nonsuit, founded on the ground that she was entitled to it as a matter of law and right?

We will discuss the questions involved in inverse order.

Respondent took the position in the lower court that she was entitled as a matter of law and right to take a voluntary nonsuit, but in the typewritten argument filed with this court concedes that the granting of a motion for a voluntary nonsuit, after a trial of the case has been entered upon, is within the discretion of the trial judge. That this is the established law of this state is beyond question. See cases of State v. Southern Ry. Co., 82 S.C. 12, 62 S.E. 1116; Pee Dee River Lumber Co. v. Fountain, 90 S.C. 122, 72 S.E 885; Armitage v. Seaboard Air Line R. Co., 166 S.C. 21, 164 S.E. 169; Barr v. Witsell, 173 S.C. 199, 175 S.E. 436.

The above-cited cases in no wise conflict with the decisions of this court that a plaintiff may, before entering upon a trial of the case, as a matter of right and law, discontinue his case or take a voluntary nonsuit unless the defendant has set up a counterclaim, or pleaded affirmative relief.

Can there be any question that the trial judge based his order granting the motion of respondent for a voluntary nonsuit on any ground other than that respondent was entitled thereto as a matter of law and right, or stated in another way, can it be claimed that the order granting respondent's motion for a voluntary nonsuit was based on the discretion of the court?

The question of a nonsuit first arose when the trial judge overruled an objection of respondent's counsel to the line of cross-examination of respondent. We here quote from the record:

"Mr. John Jennings: Now, if it is the intention of the Court to go ahead and try the case on that kind of evidence, I will take a voluntary non-suit, and get out of Court.

Mr. Cooper: We ask the Court, now, not to grant a non-suit. We are entitled to finish with this witness, whether counsel quits the case or not.

Mr. John Jennings: We have the right to a non-suit at any time we wish to take one, your honor.

The Court: Alright, sir, that is your privilege, go ahead."

"Mr. Price: We object to them taking a non-suit at this time, your honor.

The Court: My conception of the law, with regard to a non-suit, is that he has the right to take a non-suit at any time during the trial of the case. Now, if you have any authority to the contrary, I will be glad to consider it before I rule."

"Mr. Cooper: Now, then, your honor, we wish to resist the motion of the plaintiff for a voluntary non-suit, as a matter of right, and as I understand it, that would be the only way your honor would grant it. If you didn't think that they were entitled to a non-suit, as a matter of right, I am certain that your honor wouldn't grant it.

The Court: As a matter of law, Mr. Cooper."

The order granting respondent's motion is as follows: "The plaintiff, having made a motion for a voluntary non-suit, this Court holds, as a matter of law, that the plaintiff is entitled to the motion, and the motion is granted."

It will readily be seen from the foregoing that the order granting the motion for a voluntary nonsuit was bottomed entirely upon the theory that respondent was entitled to same as a matter of law and right, and we are therefore constrained to sustain appellant's exception 2.

In passing upon the other issue raised by this appeal, it will be necessary to discuss briefly the testimony.

The respondent testified that in 1927 she applied for and received from Liberty Life Insurance Company an insurance policy, No. 362469, in the name of Dora Williams, which was changed to Dora Cunningham when she married; that she did not apply to Independence Insurance Company (appellant herein) for a policy; that in 1930 a policy issued by appellant bearing the No. 1209, to Dora Cunningham (respondent herein), was left at her home in her absence. (Both policies were put in evidence, and there is printed on the back of the Independence policy the following: "This policy is issued and accepted as a substitute for a similar one of The Liberty Life Insurance Company, and that policy is hereby cancelled"); that "all along" from 1930 appellant kept asking for the Liberty policy which she...