Griffith v. Metropolitan Life Ins. Co.

• Decision Date: 13 December 1938
• Docket Number: 14791.
• Citation: 200 S.E. 89,189 S.C. 52
• Parties: GRIFFITH v. METROPOLITAN LIFE INS. CO.
• Court: South Carolina Supreme Court

200 S.E. 89

189 S.C. 52

GRIFFITH v. METROPOLITAN LIFE INS. CO.

No. 14791.

Supreme Court of South Carolina

December 13, 1938

Appeal from Richland County Court; A. W. Holman, Judge.

Action by Montine Griffith against the Metropolitan Life Insurance Company for alleged fraudulent retention and conversion of money paid defendant as a provisional deposit for an insurance policy on the life of plaintiff's minor son.From an adverse judgment after the court refused to grant defendant's motions for a nonsuit and for a directed verdict, defendant appeals.

Affirmed.

Elliott McLain, Wardlaw & Elliott, of Columbia, for appellant.

J. B McLauchlin and E. J. Best, both of Columbia, for respondent.

FISHBURNE Justice.

On January 24, 1936, the respondent, upon the solicitation of Mr. Andrews, an agent of the appellant, signed an application for a policy of insurance on the life of her minor son, Ernest G. Griffith, and paid the agent the sum of twenty-five cents, which was to be treated as a deposit and later applied in payment of the first weekly premium in the event the policy should be issued.She was given a receipt, acknowledging the payment of this premium deposit, which stipulated that if the application should be rejected the deposit would be returned to her.

The policy was never delivered, nor the premium returned.She alleges that the appellant willfully, unlawfully, and fraudulently retained this money, and appropriated and converted same to its own use and benefit.The appellant filed a general denial, and from an adverse judgment brings the case to this court upon several specifications assigning error because of the court's refusal to grant its motions for a nonsuit and a directed verdict.

The appellant argues that the evidence indisputably shows that before the commencement of the action, it tendered the return of the amount provisionally deposited with it by the respondent, and that the respondent refused to accept it.

The evidence does not disclose the reason for appellant's rejection of the application.Some weeks after the application had been made the respondent called at the Columbia office of the appellant for the purpose of paying a premium on an existing policy issued to her on the life of her said son, which had been in force a considerable length of time.This policy also required the payment of twenty-five cents per week.While there she made inquiry of Miss Moody, the agent of the appellant who customarily received her payments, as to why the new policy applied for had not been delivered, or else why her money had not been returned.This agent told her that she was not informed on the matter, but would leave a memorandum on the desk of Mr. Andrews, the soliciting agent, calling the matter to his attention.Respondent says that she thereafter visited appellant's office and made repeated demands for the policy or for the return of her money, and that the appellant refused to return the deposit.That on one of these occasions, Miss Moody suggested that she apply the deposit on the current policy.This the respondent refused to do.The respondent likewise testified that eight weeks after she signed the application, she wrote the home office of the appellant, demanding the policy or the return of her money, but that she never heard from them.

No one during the several months she pursued this inquiry informed her that the policy application had been rejected.This is not denied.

For the defense, Miss Moody testified that the respondent upon several occasions inquired of her why she had not received the policy.She also says that she told the respondent that she would leave a note on the desk of Mr. Andrews, for him to go to see her, and that she did leave on his desk such a memorandum; that sometime during this period she offered to refund the deposit, but that the respondent refused to accept it.While not at all sure, she thought the offer to refund was made in June, 1936.

Mr Andrews, the agent who solicited the insurance, says that he found the memorandum on his desk, and having been informed that the insurance applied for had been refused, he on two occasions drove out to the home of the respondent in the city of Columbia for the purpose of returning the premium deposit.He says that upon both occasions he drove into the yard, blew his horn, but no one came to the door, and he was afraid to get out because several fierce dogs surrounded his car, growling at him.He made no further attempt to see...