Going v. Mutual Ben. Life Ins. Co.
| Decision Date | 11 July 1900 |
| Parties | GOING v. MUTUAL BEN. LIFE INS. CO. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Union county; R. C. Watts Judge.
Action by Emma Going against the Mutual Benefit Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Ansel Cothran & Cothran, for appellant.
R. W Shand and James Munro, for respondent.
This action was brought upon a policy of insurance on the life of the deceased husband of the plaintiff, alleged to have been issued by the defendant company, and payable to her if she survived her husband, as she did. The defense set up by the company was that the policy sued upon had never been delivered, and there was never any completed contract of insurance. While some of the facts are contested, the following seem to be undisputed: On the 4th of May, 1898, J. D. Going, the husband of the plaintiff, made an application for insurance in writing, which is set out in the "case"; and this, together with the certificate of the medical examiner, was forwarded to the home office of the company, in Newark, in the state of New Jersey, where it was received and marked "Approved" the 9th of May, 1898, and the policy was prepared, bearing date the 10th of May, 1898, signed by the proper officers of the company, and sent to the local agent of the company at Union, S. C., through the office of the state agent at Raleigh, N.C. Precisely when the policy reached the office of the local agent at Union does not appear, though there is but little doubt that it was about the 15th of May, 1898, when Mr. L. S. Townsend, the local agent, was absent from home, and did not return until about the 15th or 20th of June, 1898. Nor did it distinctly appear at what time the assured, J. D. Going, learned that the policy had been returned to Union; but it must have been on or before the 29th of June, 1898, for on that day the judge of probate, accompanied by B. B. Going, brother of the assured, at his request called on Mr. Townsend, the local agent, and tendered him the amount of the first premium, which the local agent refused to accept, for the reason, as he said, that "the company would not allow him to deliver policies to sick men." On the 28th of May, 1898, the assured was taken sick with what proved to be typhoid fever, and on the 29th of June, when the tender was made, was very sick, and he subsequently died, on the 2d of July, 1898. Soon after this Messrs. Munro & Munro, attorneys at law, having been employed to collect the insurance, called on the local agent, Mr. Townsend, for blanks to make out the claim, and were referred by him to Mr. Pearson, the vice president of the company; and they thereupon wrote him a letter, under date of 28th of July, 1898, demanding payment of the policy of insurance issued by the company, which "your agent afterwards refused to deliver," and also for blanks for proofs of death, if required. To this letter the vice president of the company replied by letter under date of 1st August, 1898, saying that: These two letters were received in evidence without objection, but, when the plaintiff offered to introduce a letter of Messrs. Munro & Munro in reply to the letter of the vice president of the company, objection was made, which objection was overruled, and the letter was read in evidence, in which Messrs. Munro & Munro, after acknowledging the receipt of the letter of the vice president, use this language: To this letter no reply was received, and on the 14th of December, 1898, this action was commenced. At the close of the testimony for the plaintiff, the defendant moved for a nonsuit upon the ground that the plaintiff had failed to prove a completed contract, inasmuch as it was claimed that delivery of the policy was essential to complete the contract, and there was no evidence of either actual or constructive delivery of the policy. The motion was refused, and exception taken by defendant's counsel. The defendant then offered its testimony, in the course of which certain exceptions were taken as to the rulings of the circuit judge upon the admissibility of some of the testimony offered by defendant. The case went to the jury under the charge of the judge, to which certain exceptions were taken; and, a verdict having been rendered in favor of the plaintiff, a motion for a new trial on the minutes was made, which being refused, judgment was entered upon the verdict. From this judgment defendant appeals upon the several exceptions set out in the record. These exceptions impute error to the circuit judge (1) in refusing the motion for a nonsuit; (2) in his rulings as to the admissibility of testimony; (3) in his charge; and (4) in refusing the motion for a new trial.
First as to the motion for a nonsuit, which was based upon the ground "that the plaintiff has failed to prove a completed contract." Now, on a motion for a nonsuit the question is not whether the plaintiff has failed to prove his case, but the only question is whether the plaintiff has failed to produce any testimony tending to prove his case. Assuming the view most favorable to the appellant,--that the real meaning of this ground is that there was no testimony tending to show a completed contract,--we will proceed to consider the question in that aspect. While it is conceded that there was testimony tending to show that the policy which evidenced the contract sued on was sent to the local agent by the defendant company for the purpose of being delivered to the assured, yet the contention is that, while that would amount to a constructive delivery to the assured provided it was sent for unconditional delivery, yet, as there were two conditions (one that the first premium should be paid, and the other that the policy should not be delivered if the assured was at the time sick), and while the first might be regarded as having been complied with by the tender of the amount of the first premium, yet there was no testimony that the second (that the assured was in good health at the time) was complied with, and there was therefore no testimony that the contract had ever been completed, and that, on the contrary, the testimony on the part of the plaintiff showed that, when the first premium was tendered and the policy was demanded, the assured was very sick, and died in a few days thereafter. It is very obvious that this position of appellant rests entirely upon the assumption that the testimony on the part of the plaintiff tended to show that the policy was sent by the company to its local agent not for unconditional delivery, but that it was sent for delivery upon the compliance by the assured with the two conditions above stated. Now, while it is true that the policy does contain these words, "This policy does not take effect until the first premium shall have been actually paid during the lifetime of the insured," which necessarily imply that the policy was not to be delivered until that condition was complied with, yet there is not a single word in the policy which implies or even intimates that there was any other condition upon which the policy was to take effect or to be delivered. On the contrary, it is expressly declared in the policy itself that the defendant company "has, by its president and secretary, signed and delivered this contract" on the 10th of May, 1898, which, it will be noted, was the day after the application for insurance had been received and marked "Approved;" and counsel for respondent has cited an authority (Bliss, Ins. § 153), which is based upon the case of Xenos v. Wickham, 2 L. R. H. L. 296, in which it was held that a policy purporting to be "signed, sealed, and delivered" by the proper officers of an insurance company must be conclusively taken, as against the company, to have been not only duly signed and sealed, but also duly delivered, and that such a policy is complete and binding against the party executing it, though in fact it remains in his possession, unless there is some particular act required to be done by the other party to declare his adoption of it, and that it is not necessary that the assured shall formally accept or take away a policy, in order to make the delivery complete. Now, in the case before the court the only act remaining to be done by the assured after it was executed, so far as the contract on its face shows, was for the assured to pay the first premium, which was, in effect, done during the lifetime of the assured, by the tender of the amount of such premium, which, it is conceded, and properly conceded, was equivalent to payment; and so that condition was complied with, and the contract was completed. It is contended, however, by the appellants, there was another condition to the delivery of the policy, which was not, and could not have been, complied with at the time the delivery of the policy was demanded, to wit, that the assured must then have been shown to be in good health, which was not only not shown, but, on the contrary, the testimony tended to show that the assured was at the time very sick of a disease from which he died in a few days thereafter. But it is very obvious that the policy, which constitutes the contract between the parties, contained no such...
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