Fleming v. Pioneer Life Ins. Co.

• Decision Date: 01 November 1935
• Docket Number: 14155.
• Parties: FLEMING v. PIONEER LIFE INS. CO.
• Court: South Carolina Supreme Court

182 S.E. 154

178 S.C. 226

FLEMING v. PIONEER LIFE INS. CO.

No. 14155.

Supreme Court of South Carolina

November 1, 1935

Appeal from Common Pleas Circuit Court of Spartanburg County; Philip H. Stoll, Judge.

Action by Alex Fleming against the Pioneer Life Insurance Company From an order sustaining defendant's demurrer to the complaint and from an order settling the case for appeal and allowing a proposed amendment, plaintiff appeals.

Orders reversed and case remanded.

Johnson & Johnson, Jennings L. Thompson, Arnold R. Merchant, and L G. Southard, all of Spartanburg, for appellant.

Mann & Arnold, of Greenville, and Nicholls, Wyche & Russell, of Spartanburg, for respondent.

BONHAM Justice.

Appellant's action is founded upon the allegations, contained in his complaint, that the agent of the respondent insurance company induced him to apply for a policy of insurance on the life of his wife, Mamie Fleming, in which the appellant was the beneficiary; that the agent of the company represented that the policy would be noncancelable except for nonpayment of premiums and if and when appellant ceased to be an employee of the city of Spartanburg; that the master policy was delivered to D. H. Huntsinger, trustee, and a certificate delivered to appellant which did not contain the noncancelable features the agent had agreed to insert in it and he did not know that the master policy delivered to Huntsinger, trustee, did contain cancelable provisions; that appellant had no notice of the fraud practiced upon him until he received notice of the cancellation of the policy.

The respondent demurred to the complaint for that it did not state facts sufficient to constitute a cause of action for the several reasons set out in the record.

Argument of the demurrer was heard by Judge Stoll, who sustained it in his order of February 7, 1935. In due time plaintiff gave notice of intention to appeal. His case with exceptions was served on respondent's attorney on March 2, 1935. In due time respondent's attorneys served upon appellant notice of certain proposed amendments to appellant's proposed case, of which the second was disallowed. It is in these words: "Between lines 28 and 29 and after the additional grounds of demurrer insert the following, 'The demurrer was argued before Judge Stoll February 4, 1935. During the argument on the demurrer the original certificate No. 11592-GS, sued on in this case, was presented to the Judge by plaintiff's attorneys, and inspected by him in connection with the argument and issues raised by the demurrer."

It was referred to Judge Stoll to settle the case for appeal. In his order so settling the case, he allowed the proposed amendment and ordered the certificate printed in the record. In justice to the distinguished circuit judge who heard the case and whose eminent fairness and impartiality is well known, we copy the following from his order:

"On account of the many cases that I am called upon to hear at chambers, it is impossible to remember every detail of what was said and done at each hearing and it appears in this case that counsel for both the appellant and the respondent are similarly handicapped, for there is considerable variance appearing in their respective briefs as to what took place before me."

Of course, on hearing a demurrer to a complaint, the complaint itself must be considered as it is written, without reference to facts not appearing on the...