Dunlap v. Travelers Ins. Co.

• Decision Date: 24 February 1953
• Docket Number: No. 16719,16719
• Citation: 74 S.E.2d 828,223 S.C. 150
• Court: South Carolina Supreme Court
• Parties: DUNLAP v. TRAVELERS INS. CO.

Page 828

74 S.E.2d 828

223 S.C. 150

DUNLAP v. TRAVELERS INS. CO.

No. 16719.

Supreme Court of South Carolina.

Feb. 24, 1953.

J. Edwin Belser, Jr., Columbia, John S. Hoar and C.M. Edmunds, Sumter, for appellant.

McLeod & Shore, Sumter, for respondent.

JAMES B. PRUITT, Acting Associate Justice.

This is an action brought by the plaintiff for benefits under an insurance policy issued by the defendant to the plaintiff protecting him against permanent and total disability on the 20th day of June, 1922. The contract of insurance was issued and delivered in the State of North Carolina. Thereafter, during the year 1940, the respondent accidentally injured his right hand, in which certain bones were crushed. Subsequently he brought an action in the Circuit Court of Sumter County, South Carolina, to collect the benefits provided by said policy. In that case the plaintiff recovered judgment and the defendant appealed to this court, being reported in Dunlap v. Travelers Insurance Company, 203 S.C. 165, 26 S.E.2d 504. The defendant paid benefits to the plaintiff for some years but in 1949 terminated the payments, and thereupon the present action was brought to enforce payment.

By its second defense, in the present controversy, the defendant pleads that the contract of insurance was issued and delivered in the State of North Carolina and desires to invoke the lex loci contractus.

Plaintiff moved to strike said defense on the ground that the same was irrelevant, immaterial and redundant. His Honor, G. Duncan Bellinger, Circuit Judge, issued his order striking the defense and the defendant appealed.

After a very careful study of the well considered order of his Honor, G. Duncan Bellinger, Circuit Judge, from which this appeal was taken, we are satisfied that it disposes of all questions correctly and it will be reported as a judgment of this court.

Order of Judge Bellinger:

"This matter came on to be heard before me while presiding over the Courts of the Third Judicial Circuit, and arises on demurrer by plaintiff to a defense in the answer and on a concurrent motion to strike the same defense. It is conceded that these modes of attack are the same for all practical purposes. The Plaintiff takes the position that the things set forth therein by way of defense are irrelevant, immaterial and redundant.

"The plaintiff, who is a dentist by profession, alleges, among other things in his complaint, that he, on the 20th day of June, 1922, purchased from the defendant an insurance policy which insured him against permanent and total disability. That thereafter, on the 1st day of August, 1940, he sustained an accident in which the bones of his right hand were crushed and that as a result thereof he became permanently and totally disabled under the terms of the policy in suit. Thereafter he instituted an action on the same policy against the same defendant to recover payments thereon as a result of these injuries. In the former action the plaintiff was successful in the lower Court and the judgment of that Court was affirmed by the Supreme Court of this State, the opinion of the Court in that case being reported in 203 S.C. 165, 26 S.E.2d 504. Pursuant to this adjudication the defendant paid the plaintiff the installments sued for in that case and paid all subsequent installments as they became due until 1st day of August, 1949, when the defendant refused to pay any further installments after that time.

"The instant action was brought to recover such payments that became due from the 1st of August, 1949, to the 31st day of March, 1951. The plaintiff alleges in his complaint that he is 'totally and permanently disabled within the terms of the said policy of insurance, *** all of which will more fully appear by reference to judgment *** of record in the office of the Clerk of Court for Sumter County, and by reference to the decision of the Supreme Court of South Carolina in the case of Dunlap v. Travelers Insurance Company, 203 S.C. 165, 26 S.E.2d 504, ***'

"The defendant, by way of a second defense '*** alleges further that the defendant, The Travelers Insurance Company, issued said policy of insurance, ***, and delivered the same to the plaintiff herein in the State of North Carolina, said plaintiff being a citizen and resident of the said State at the time of the executing and delivery of said contract of insurance; that said contract was entered into by and between the parties thereto in the said State of North Carolina; that said contract, therefore, constitutes a North Carolina contract, the validity thereof and its interpretation being subject to the laws of said State, and the defendant herein pleads, specifically, the laws of the State of North Carolina, as a defense to this action.'

"By the defense interposed, the defendant desires to invoke the lex loci contractus, which it is conceded by both the plaintiff and defendant was not plead as a defense in the former trial, nor introduced therein. So that the former trial proceeded under the law of South Carolina. There is no contention that the policy was executed and delivered in the State of North Carolina.

"It is the contention of the defendant that although the disability benefits now sued for were provided for in the policy of insurance, constituting the basis of the former action, it is a separate and distinct cause of action, and was not sued for in the former suit, that suit being only for the amount of accrued installments up to that time. The defendant takes the position that the decision of the Court in the former suit between these parties would not preclude the defendant in this action to set up as a defense to the payment of future installments, the defense now interposed, it not being bound by the defense interposed in the former action.

"The question narrows itself down to whether or not, under the decision of the Supreme Court in the former case between the same parties herein referred to, can a defense be set up in this action different from that set up in the prior action? The main bone of contention is the effect of the judgment in the former action.

"In the former action between these parties, reported in 203 S.C. 165, 26 S.E.2d 504, after affirming the decision of the lower Court, our Supreme Court said:

'The opinion in this case is not intended to preclude the appellant from instituting an action at a later date to have it judicially declared that the respondent is then not wholly and continuously disabled by reason of his injury from engaging in any occupation or employment for wage or profit reasonably comparable to his previous earnings.'

"By that holding, the Court said, in effect, that as to the payment of any further installments for disability the only defense available to the defendant was to show that the plaintiff had reached the point where he is no longer 'not wholly and continuously disabled by reason of his injury from engaging in any occupation or employment for wage or profit reasonably comparable to his previous earnings.'

"Subsequently to the decision in the case of Dunlap v. Travelers Insurance Co., supra, our Supreme Court had before it the case of Prudential Insurance Co. of America v....