Drayton v. Industrial Life & Health Ins. Co.

• Decision Date: 17 July 1944
• Docket Number: 15663.
• Citation: 31 S.E.2d 148,205 S.C. 98
• Parties: DRAYTON v. INDUSTRIAL LIFE & HEALTH INS. CO.
• Court: South Carolina Supreme Court

31 S.E.2d 148

205 S.C. 98

DRAYTON v. INDUSTRIAL LIFE & HEALTH INS. CO.

No. 15663.

Supreme Court of South Carolina

July 17, 1944

McEachin & Townsend, of Florence, and F. A. Thompson, of Conway for appellant.

W Kenneth Suggs and J. Reuben Long, both of Conway, for respondent.

FISHBURNE Justice.

The action of the plaintiff is based upon a lost policy of insurance in the sum of $400 on the life of David (also called Ben) Green, alleged to have been issued by appellant Industrial Life & Health Insurance Company, which designated the plaintiff as beneficiary. Appellant denied that it had ever issued this or any insurance policy on the life of David (Ben) Green, and alleged that no such policy had ever been in existence.

The trial resulted in a judgment for the plaintiff for the amount claimed, and the appellant appeals to this Court upon several exceptions involving the admission and exclusion of evidence error in overruling its motion for a nonsuit and a new trial, and alleged error in the charge to the jury.

The evidence for the respondent tends to show that the policy in question was issued upon the life of David Green, a cousin of the respondent, long prior to May 1, 1937; that three years and a half before this date the insured, who had been living at Conway, moved to the town of Georgetown to enter some employment there. Just prior to leaving he went to the home of the respondent, Minnie Jackson Drayton, in the town of Conway, with Mr. Huggins, the local agent of the appellant, and delivered the policy to her. Mr. Huggins opened the policy and read it to her, and from this she learned that she was the beneficiary named therein, and that the amount of insurance was $400 in case of natural death. This information was supplemented by statements from the agent to the same effect. The respondent retained the policy and paid the weekly premium of fifteen cents to Mr. Huggins for three years and a half, extending two weeks beyond May 1, 1937, on which date the insured, a negro twenty-four years of age, was killed in an affray in Georgetown. From then until this action was brought, in April, 1940, the respondent, who appears to have been an ignorant colored woman, made continuous efforts to collect the policy.

She says that Mr. Huggins, the local agent, a week after the death of the insured, gave her a form of certificate of death, and instructed her to have it filled out by the Registrar of the Bureau of Vital Statistics in Georgetown County. This she did, and the certificate of death bearing date May 15, 1937, showing that David Green had died in Georgetown County on May 1, 1937, was delivered to Mr. Huggins, according to her testimony, together with her premium receipt book, in which were entered all payments made by her on the policy. It appears that Mr. Huggins severed his connection with the insurance company on January 1, 1938, and he was succeeded by Mr. Ellis as local agent for the Conway area. Respondent says that she strove, through Mr. Huggins and Mr. Ellis, to obtain payment of the policy, but without avail.

About two years after the death of the insured, she interviewed the local magistrate at Conway, and showed him the policy. Upon his suggestion she took the policy to Mr. Dusenbury, an attorney at Conway, to have him take steps to collect it. After he had kept it about three weeks, she was told by Mr. Ellis that she had better get her policy back because the lawyers would take all the money. The testimony shows that the respondent had never been in a lawyer's office before, and had had no previous dealings with lawyers. Following the advice of Mr. Ellis, and being nervous and apprehensive, she obtained the policy from Mr. Dusenbury and carried it to her home, where she kept it with other papers in a little black bag.

Shortly thereafter, she wrote a letter to the home office of the defendant in Atlanta with reference to the matter, and within a week a man who held himself out as the superintendent of the appellant, came to her home, and requested to see all policies or papers that she had with this insurance company. She handed him the bag containing the policy on the life of David (Ben) Green; he then told her and her husband, who was present, to make further search for any other papers she might have. She knew that she had no more, but upon his urging she and her husband went into another room for about five minutes to make further search. When they returned to the room where the purported agent was he was closing his brief case, and he told her that he had not found any policy issued by the company upon the life of David Green, but she would hear from the company.

When this man first called at the respondent's home he informed her that he had the letter which she had written to the company. He had this letter in his hand; she saw it, and although she could neither read nor write, she recognized it as the same letter which she had sent to the company. She testified that the policy was in the bag when she gave it to this alleged agent, and after he left it was not there, and that she had not seen it since that time.

After leaving his employment with the insurance company, Mr. Huggins moved to Lamar, in this State, where he engaged in farming. The respondent made two trips to Lamar from Conway in a determined effort to recover her premium receipt book, and to ascertain why her policy had not been paid. Mr. Huggins admitted in his testimony that the respondent had been to see him twice about this matter; but he denied that he had ever received from her the receipt book; and denied the existence of any such policy. He stated that he had never written or issued a policy on the life of David Green, and had never collected any premiums thereon. He admitted that he had visited the home of the respondent and knew her, and had delivered to her a policy on her life and on the life of her husband, Dave Drayton, but these policies had lapsed two weeks after issuance, for non-payment of premiums.

The magistrate, Mr. Grainger, testified that in 1938 or 1939, the respondent brought a policy to him and sought his advice about it; he stated that it was issued by some industrial company for which Mr. Huggins was agent. He could not recall the name of the insured, but stated that he lived at Georgetown, and he knew the identity of the insured at that time. The beneficiary named in the policy was the respondent, but the witness could not remember the amount of insurance. Mr. Huggins in his testimony stated that the only company he represented at Conway was the Industrial Life & Health Insurance Company.

Mr. Dusenbury recalled that respondent came to his office, bringing an insurance policy which she wanted him to collect. This was two or three years before the action was commenced. He said that the beneficiary named in the policy was the respondent; that the policy was issued by some industrial company, and that the word "Industrial" was a part of the name of the company; that the policy was issued upon the life of a person named Green, but that he could not remember the full name, nor could he recall the amount of the insurance. After keeping the policy about two or three weeks, Mr. Dusenbury returned it to the respondent upon her request. On cross-examination he stated that at the time he had the policy in his possession he made some investigation, and saw no reason why it should not be collected.

There was some other testimony on behalf of the respondent. Her husband, Dave Drayton, stated that he was present when the man holding himself out as the superintendent from Atlanta, visited his home, and he fully corroborated respondent's testimony with reference to the disappearance of the policy, and the exhibition by this man of the letter written by respondent to the company. Another witness testified that he was present at the home of the respondent when she paid Mr. Huggins a premium on a policy issued on the life of David Green.

Throughout the trial of the case the appellant contended that it had never issued the policy in question; and had never at any time issued a policy of life insurance in the face amount of $400. It was also shown that the main business of the appellant was done with negroes.

Because of the unusual character of this case, we have dealt with the testimony rather fully. We now turn to the issues made by the appeal.

The appellant first contends that the lower Court erred in admitting testimony for the plaintiff that the man who came to see her from Atlanta was an agent of the appellant, when proof of such agency rested only upon statements made by the alleged agent. The purpose for which this testimony was offered by the respondent was to show that the original policy was lost, in order to prove its existence and contents by secondary evidence.

It is true that agency may not be established solely by the declarations and conduct of the alleged agent, but such declarations and conduct are admissible as circumstances in connection with other evidence tending to establish the agency. Broadway v. Jeffers, 185 S.C. 523, 194 S.E. 642, 114 A.L.R. 1244; Cogswell v. Cannady, 135 S.C. 365, 133 S.E. 834; Bass v. American Products Export & Import Corporation, 124 S.C. 346, 117 S.E. 594, 30 A.L.R. 168.

It often occurs that direct proof of the fact of agency is impossible. This was true in the case at bar. But agency may be established by circumstances, apparent relations and conduct, and may be proved by circumstantial as well as positive testimony. Sturkie v. Commonwealth Life Ins. Co. of Louisville, Ky., 180 S.C. 177, 185 S.E. 541.

It will be recalled that the purported agent not only declared himself to be the superintendent from Atlanta of appellant but exhibited to respondent a...