Deal v. Deal

• Decision Date: 07 January 1911
• Citation: 69 S.E. 886,87 S.C. 395
• Parties: DEAL v. DEAL et al.
• Court: South Carolina Supreme Court

69 S.E. 886

87 S.C. 395

DEAL v. DEAL et al.

Supreme Court of South Carolina

January 7, 1911

Appeal from Common Pleas Circuit Court of Richland County; J. C Klugh, Judge.

Action by Mary L. Deal against Margaret E. Deal and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

See also, 85 S.C. 262, 67 S.E. 241.

J. S Verner, for appellants. Hunter A. Gibbes, for respondent.

GARY A. J.

The record contains the following statement of facts: "The appeal herein is from a judgment on a verdict rendered in favor of the plaintiff [respondent], at the spring term of the court of common pleas for Richland county, 1909. The plaintiff alleges that Dr. Samuel M. Deal, took out an insurance policy, wherein he named his mother, Margaret E. Deal, as beneficiary, and agreed with the insurance company that in the event of his surviving the endowment period of 20 years, then the amount of the insurance policy should be payable to him, but that, in the event of his death during the endowment period, the said policy should be payable to his mother, if she were then living, otherwise to his executors or administrators. In the application for the policy, and in the policy itself the insured reserved the right to change the beneficiary by sending the policy to the home office of the insurance company at Newark, N. J., with his written request for a change of beneficiary, so that the proper indorsement might be made by the company on the policy. At the time of taking out the insurance policy, Dr. Deal was unmarried and subsequently married, and thereafter, as claimed by the plaintiff, executed the assignment of the policy set out in the complaint, and sent the said assignment to the home office of the company, but did not, however, as claimed by the defendants [appellants], send the policy to Newark, N. J., for the purpose of having the change of beneficiary noted thereon. Thereafter Dr. Deal died and the insurance company, not recognizing the attempted assignment, paid the proceeds thereof to the defendant Margaret E. Deal, the beneficiary under the policy, who had gotten possession of the policy, and made up proof of death. The plaintiff respondent alleged that not only was she entitled to the proceeds of the policy, by reason of the assignment, and by reason of the fact that Dr. Deal had orally assigned the same to her, but also alleges that the defendants [appellants] had committed fraud against her, in obtaining the possession of the policy from her; and asked judgment not only for the amount of the policy and interest, but also for $500 as punitive damages. The defendants [appellants] deny both that the plaintiff is entitled to the proceeds of the policy, and that they were guilty of fraud in obtaining possession of same, and claim that the defendant Margaret E. Deal was, under the law, entitled to the proceeds of the policy. Upon the issue raised by the pleadings, the case was tried before the Honorable J. C. Klugh and a jury, and a verdict was rendered for the plaintiff, for the value of the policy with interest, *** and judgment was duly entered upon said verdict."

The first question that will be considered is, whether his honor, the presiding judge, erred in charging the jury that, in order for Dr. Deal, the insured, to avail himself of the privilege of changing the beneficiary, it was not necessary for him to return the policy to the company, with a written request that the change be indorsed upon it; that he could effect a change of beneficiary, either by a written assignment or by a delivery of the policy, with the intention of making such change.

"The beneficiary of an insurance policy has a vested right in the contract of insurance which cannot be dismissed or affected by subsequent agreements between the insurer and the insured, which are not stipulated or provided for in the original contract. The vested right of the beneficiary is subject to be divested only in accordance with express provisions of the contract, permitting a change of the beneficiary."Syllabus by the Court in Arnold v. Ins. Co., 3 Ga.App. 685, 60 S.E. 470.

In 2 May on Insurance, § 399L, the rule is thus stated: "The beneficiary takes a vested interest the moment the policy is issued, unless the agreement by charter or otherwise contains a provision inconsistent with such...