Guy v. National Old Line Ins. Co.
| Decision Date | 13 December 1968 |
| Docket Number | No. 18853,18853 |
| Citation | 252 S.C. 47,164 S.E.2d 905 |
| Court | South Carolina Supreme Court |
| Parties | W. L. GUY, Jr., Respondent, v. NATIONAL OLD LINE INSURANCE COMPANY, Appellant. |
Clinch Heyward Belser, of Belser, Belser & Baker, Columbia, J. M. McLendon, Marion, for appellant.
C. W. Derrick and William S. Derrick, of Derrick & Derrick, Marion, for respondent.
In this action for fraud and deceit plaintiff-respondent seeks to recover from the defendant-appellant the sum of $10,000.00 on account of certain alleged false representations by the defendant to the plaintiff, when the plaintiff purchased from the defendant, on or about the first day of March 1951, a Foundation Investment Policy. The complaint alleges that defendant's agent 'in an attempt to induce the plaintiff to purchase the said policy, falsely, fraudulently and with intent to defraud the plaintiff represented to plaintiff orally and by way of a 'work sheet' (a copy is attached and made a part of this complaint) that if he would take out the said policy and keep the policy in effect for a ten year period, upon the payment of the eleventh year's premium, the plaintiff would be entitled to an amount of $2,076.00 from the defendant; or words of like effect, and for the other benefits contained in the said policy of insurance.'
The complaint further alleged that the foregoing representation was false in fact and known to be false at the time it was made; that the policy contained no mention of the amount represented and, therefore, did not affirm or disaffirm such representation, and that by reason of such false representation plaintiff was induced to take out the said policy and pay the premiums thereon. It is further alleged that the truth of falsity of the representation could not be ascertained from reading the policy and that the plaintiff was, in fact, unable to do so. That any possible explanation or reference within the policy to the amount payable after the ten year period was unclear, indefinite and confusing to the ordinary prudent man and plaintiff had no way of ascertaining the truth or untruth of the representation and, therefore, no reason to disbelieve the representation made to him. It is further alleged that at the time of the payment of the premium for the eleventh year the defendant tendered a check for $361.80, instead of $2,076.00, as represented by the defendant's agent, which check was refused by the plaintiff.
The policy was not attached to or made a part of the complaint. The attached work sheet indicates, inter alia, that plaintiff was 31 years of age at the time and that the annual deposit was in the amount of $233.05. The deposits for eleven years would, accordingly, amount to $2,563.55. The defendant removed the case to the Federal District Court and duly filed an answer denying the allegations of the complaint and asserting that the policy itself was the best evidence of its terms, and contained a full concise and clear explanation of the amount payable, if any, at the end of the period of time concerned. The case was thereafter remanded to the Court of Common Pleas for Marion County, whence it originated. Sometime thereafter, the defendant served a notice of motion for an order dismissing the complaint on the ground that it did not state facts sufficient to constitute a cause of action because it appeared on the face of the complaint that the policy contained no mention of the amount, allegedly represented to plaintiff as a benefit of the policy, and that the plaintiff had failed to take advantage of the opportunity and means afforded him to protect his own interest during the period of time which had elapsed since the inception of the policy
Defendant's motion, in essence and effect a demurrer, did not incorporate the policy by reference or otherwise. Such motion was argued before the resident circuit judge and overruled by an order dated September 23, 1966. Before ruling on the motion, the circuit judge obtained from plaintiff's counsel the insurance policy and his order reflects that his decision was, in part, based upon the contents of the policy. The appeal is, of course, from the order overruling the defendant's motion.
It is elementary that in passing upon a demurrer the court is limited to a consideration of the pleadings under attack, and all of the factual allegations thereof that are properly pleaded are, for the purpose of such consideration, deemed admitted. If follows that the circuit judge was in error in considering the policy and in part basing his order on the contents thereof. The portions of his order dealing with the contents of the policy are not affirmed, but such does not necessarily mean that he did not reach a correct result. The question still remains whether the complaint, without the aid and benefit of the policy, sufficiently states a cause of action, good against demurrer.
Defendant's demuerrer is predicated on the general rule of law stated in the case of Gordon v. Fidelity & Casualty Co. of N.Y., 238 S.C. 438, 120 S.E.2d 509 (1961), as follows:
'We have consistently followed the rule that ordinarily one cannot complain of fraud in the misrepresentation of the content of a written instrument when the truth could have been ascertained by reading the instrument, and one entering into a written contract should read it and avail himself of every reasonable opportunity to understand its content and meaning.'
While the quoted general rule originated in this jurisdiction with respect to contracts other than insurance policies, it has been applied by this court in numerous cases wherein it was alleged that fraudulent misrepresentations on the part of an insurer induced an insured to purchase a particular insurance policy. It was apparently first so applied by this court in Frierson v. Inter-Ocean Casualty Co., 168 S.C. 178, 167 S.E. 232 (1933), a decision apparently predicated in large measure on the reasoning of the court in Colt Co. v. Britt, 129 S.C. 226, 123 S.E. 845 (1924), a case wherein a defendant sought to avoid a contract for alleged fraud in the procurement thereof.
In compliance with this rule, we have repeatedly...
To continue reading
Request your trial
-
Pitts v. JACKSON NAT. LIFE INS. CO.
...Giles v. Lanford Gibson, Inc., 285 S.C. 285, 289, 328 S.E.2d 916, 918 (Ct.App.1985) (quoting Guy v. Nat'l. Old Line Ins. Co., 252 S.C. 47, 51, 164 S.E.2d 905, 906 (1968)). Giles recognizes the circumstances of each case must be considered. We find the circumstances of this case indicate the......
-
Jones v. Jim Walter Homes, Inc.
...and means of knowledge of the parties, etc. J.B. Colt Co. v. Britt, 129 S.C. 226, 123 S.E. 845, 848 (1924); Guy v. National Old Line Ins. Co., 252 S.C. 47, 164 S.E.2d 905, 908 (1968). As for the failure to read a written contract, usually this is fatal to a claim of justifiable reliance upo......
-
Allen-Parker Co. v. Lollis
...and means of knowledge of the parties, etc. J. B. Colt Company v. Britt, 129 S.C. 226, 123 S.E. 845.' In Guy v. National Old Line Ins. Co., 252 S.C. 47, 164 S.E.2d 905, we stated that where the conduct of a policy holder amounted to a reckless or conscious disregard of his duty to avail him......
-
G-H Ins. Agency, Inc. v. Travelers Ins. Companies
...order that in passing upon a demurrer the court is limited to a consideration of the pleadings under attack. Guy v. National Old Line Ins. Co., 252 S.C. 47, 164 S.E.2d 905 (1968). It then found the appellant based its claim for damages and injunctive relief upon an alleged violation of pres......