Grayson v. Fidelity Life Ins. Co. of Philadelphia, Pa.

• Decision Date: 28 June 1920
• Docket Number: 10411.
• Citation: 103 S.E. 477,114 S.C. 130
• Parties: GRAYSON v. FIDELITY LIFE INS. CO. OF PHILADELPHIA, PA.
• Court: South Carolina Supreme Court

103 S.E. 477

114 S.C. 130

GRAYSON v. FIDELITY LIFE INS. CO. OF PHILADELPHIA, PA.

No. 10411.

Supreme Court of South Carolina

June 28, 1920

Appeal from Common Pleas Circuit Court of Barnwell County; Edward McIver, Judge.

Action by E. H. Grayson against the Fidelity Life Insurance Company of Philadelphia, Pa. From a judgment for defendant after entry of nonsuit, plaintiff appeals. Reversed.

James E. Davis, of Barnwell, D. W. Robinson, of Columbia, and J. R Bryson, of Greenville, for appellant.

Melton & Belser, of Columbia, and Harley & Blatt, of Barnwell, for respondent.

GARY C.J.

This is an action for damages alleged to have been sustained by the plaintiff, through the fraud and misrepresentations of the defendant, whereby he was induced to make an exchange of insurance policies. The first policy was issued to him by the defendant on the 12th of December, 1894, the amount of insurance on his life was $1,000, and the annual premium was $33.71. The said policy contained a provision that the plaintiff, upon arriving at the age of 72 years, was to be paid $500 in cash, or receive a paid up policy of $1,000. The second policy was delivered to the plaintiff on the 12th of December, 1905, the amount of insurance was $1,000, and the annual premium was $34.71; but it did not contain the provision as to $500 in cash, or a paid-up policy for $1,000 as in the first policy. On the contrary, it contained this provision: "This policy expires at 12 o'clock noon on the twelfth day of December, 1914, but may be continued in force thereafter, for life, without medical examination, by the payment on that date, and on each succeeding anniversary of the renewal premium, according to the attained age of the insured, as set forth on the second page of this policy." The insured at that time was 68 years of age and the renewal premium according to that age was $112.82.

At the close of the testimony introduced by the plaintiff, the defendant's attorneys made a motion for a nonsuit, on substantially the following grounds: (1) That the plaintiff had applied for the policy received, which he admitted, and that the policy fully complied with the application, and hence there was no basis for the action on account of its failure to come up to representation; and (2) on the ground that, having received and retained the policy for nine years paying the premiums and receiving its protection, without objection, the plaintiff as a matter of law was deemed to have accepted the policy, and waived any claims of fraud or misrepresentation as to its character or terms.

In granting the motion his honor, the presiding judge, made the following order:

"As we all know, gentlemen, nonsuits cannot be granted where there is any testimony from which a reasonable inference can be drawn, tending to prove the allegations of the complaint. On the question of misrepresentation and fraud, there seems to me that there is some evidence tending to establish misrepresentation and fraud. While under the law, when a man goes into a written contract, he is presumed to know the terms of it, and it is presumed to contain the agreement of the parties, still that would not be fraud where fraud is charged, and where there is any evidence tending to establish fraud, and if the case stopped there, I would feel compelled to refuse the motion for a nonsuit, but it goes a step further. Even if that agreement was first obtained by fraud, it was acted on at once, and in two weeks afterwards, and the policy, which they represented to him would be a better policy than the one he had at that time, was sent to

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