Gallmon v. American Emp. Ins. Co.

• Decision Date: 12 February 1979
• Docket Number: No. 20880,20880
• Court: South Carolina Supreme Court
• Parties: Sarah A. GALLMON and David Irving, Respondents, v. AMERICAN EMPLOYERS' INSURANCE COMPANY and Curtis-Brooks d/b/a Curtis-Brooks Company Agency and Thrift-Company, Inc., of which American Employers' Insurance Company is, Appellant.

Page 124

252 S.E.2d 124

272 S.C. 369

Sarah A. GALLMON and David Irving, Respondents, v. AMERICAN EMPLOYERS' INSURANCE COMPANY and Curtis-Brooks d/b/a Curtis-Brooks Company Agency and Thrift-Company, Inc., of which American Employers' Insurance Company is, Appellant.

No. 20880.

Supreme Court of South Carolina.

Feb. 12, 1979.

Stephen G. Morrison, of Nelson, Mullins, Grier & Scarborough, Columbia, for appellant.

Sandifer & Cheatham, Lexington, for respondents.

GREGORY, Justice:

Respondents Sarah A. Gallmon and David Irving brought this action against appellant American Employers' Insurance Company (A.E.I.C.) to determine coverage under a policy of automobile liability insurance issued by A.E.I.C. After the jury returned a verdict for A.E.I.C. the lower court granted respondents' motion for a judgment Non obstante veredicto and found that the respondents were entitled to coverage. We reverse.

For purposes of appellate review, an order granting a motion under Circuit Court Rule 79 for a judgment Non obstante veredicto is akin to an order granting a motion for a directed verdict. The evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the party opposing the motion. Like a motion for a directed verdict, a motion for a judgment Non obstante veredicto should be granted only when the evidence is susceptible of only one reasonable inference. A motion for a judgment Non obstante veredicto should not be granted if the evidence is susceptible of more than one reasonable inference. Grooms v. Zander, 246 S.C. 512, 144 S.E.2d 909 (1965).

Viewed in this light, the facts disclosed by the record are as follows:

In 1972 A.E.I.C. issued a policy of automobile liability insurance under the Assigned Risk Plan to Ms. Gallmon. During the term of this policy Danny Alexander, Ms. Gallmon's boyfriend, was involved in an accident while operating Ms. Gallmon's automobile.

After renewing the policy for a second term A.E.I.C. discovered that according to official Highway Department records Alexander, a regular driver of the automobile, was only twenty four (24) years old. Based on this information Ms. Gallmon's risk was reevaluated by A.E.I.C. and she was billed for an additional premium. After Ms. Gallmon failed to pay the additional premium A.E.I.C. mailed to her a notice of cancellation for non-payment of premiums, effective April 1, 1974. In due time thereafter, A.E.I.C. cancelled the policy and mailed a refund of unearned premiums to Ms. Gallmon's insurance agent.

Alexander's birth certificate reveals that at the time A.E.I.C. reevaluated Ms. Gallmon's policy risk he was, in fact, twenty five (25) years old. No attempt was made by either party to explain the inconsistency between Alexander's birth certificate and the Highway Department records.

On April 27, 1974 Ms. Gallmon's automobile was involved in a second accident while being driven by respondent Irving. This action was initiated after A.E.I.C. refused coverage based on its cancellation.

The matter came first before Judge Bristow in October 1976 on A.E.I.C.'s motion for summary judgment. Judge Bristow denied the motion and stated:

Upon this state of the record it appears that there is a question of fact as to whether it was reasonable for the defendant to rely on the Highway Department's records and, therefore, whether the cancellation was proper.

The matter then was tried by Judge Timmerman and a jury in November 1977....