Henderson v. Life Ins. Co. Of Va.

• Decision Date: 11 March 1935
• Docket Number: No. 14016.,14016.
• Citation: 179 S.E. 680
• Court: South Carolina Supreme Court
• Parties: HENDERSON. v. LIFE INS. CO. OF VIRGINIA et al. (four cases).

179 S.E. 680

HENDERSON.

v.LIFE INS. CO. OF VIRGINIA et al. (four cases).

No. 14016.

Supreme Court of South Carolina.

March 11, 1935.

Appeal from Common Pleas Circuit Court of Greenville County; C. J. Ramage, Judge.

Action by Corrie Henderson, administratrix of the estate of Maxie Henderson, alias Thomas, deceased, against the Life Insurance Company of Virginia and another. Prom an order denying plaintiff's motion to strike all the defenses from named defendant's answer, plaintiff appeals.

Modified in part, and otherwise affirmed.

Defendant Insurance Company's answer, the order appealed from, and the exceptions thereto were as follows:

Answer of Life Insurance Company of Virginia.

The defendant, the Life Insurance Company of Virginia, by its attorneys, expressly reserving and not waiving its right to have its motion to change the place of trial of this action, heretofore filed, heard and de-termined by the court, answering the complaint herein, alleges:

For a First Defense.

(1) That, on information and belief, it admits paragraph 1.

(2) That this defendant has not knowledge or information sufficient to form a belief as to the truth or verity of paragraph 2 of said complaint, and therefore denies the same.

(3) In answer to paragraph 3 of the said complaint, this defendant admits that it is a corporation duly organized and existing under and by virtue of the laws of the state of Virginia, engaged in the business of writing life insurance and as such is now, and has been for a number of years, duly qualified to carry on its business in the state of South Carolina; that, on information and belief, it admits that James R. Thomas is a resident of the county of Anderson, state of South Carolina, as aforesaid.

(4) In answer to pragraph 4, this defendant alleges that, in consideration of an application therefor made, dated October 20, 1928, which was made a part of the contract and a copy of which application was attached thereto, it issued its policy of insurance, numbered 161069, on the life of one James Maxie Thomas for the face amount of $3,000, in which policy of insurance James R. Thomas was named the beneficiary, if living at the death of the insured, otherwise to the insured's executor, administrators, or assigns; but this defendant denies that such policy of insurance is now, or ever has been, effective or of binding force on account of the facts and tilings hereinafter set forth.

(5) In answer to paragraph 5, this defendant admits that the said James R. Thomas was named as the beneficiary in the said policy of insurance and is now claiming the right to receive the amount alleged to be due under said policy, and also that he, the said James R. Thomas, is not entitled to receive or collect said insurance policy, or any part thereof, by reason of the fact that he has been since the death of the said James Maxie Thomas convicted in the court of general sessions for Anderson county, S. C, for having unlawfully killed the said James Maxie Thomas. In answer to the remaining allegations contained in said paragraph, this defendant denies that neither the said James R. Thomas nor the plaintiff herein have any right, interest, or claim by reason of the policy of insurance, inasmuch as the same is now, and has been since its inception, utterly null and void and of no effect. And con sequently denies any rights thereunder vested by law in the plaintiff for the benefit of the heirs and distributees of the said intestate, or for any one else.

(6) This defendant denies the allegations of paragraph 6, except so much thereof as alleges that demand has been made by the plaintiff upon this defendant for the payment of sums alleged to be due under said policy, which demand was declined and refused by reason of the facts and things hereinafter set forth.

(7) In further answer to said complaint, this defendant would respectfully show to the court that upon the face of the policy of insurance the said James R. Thomas is the person appearing to be entitled to the benefits thereunder, and, until his rights therein have been fully declared and adjudicated by a court of competent jurisdiction, which has not to the date of these presents been done, the plaintiff herein is not entitled to assert or claim any interest in and to said policy of insurance; that a final disposition has not been made in the criminal proceedings hereinabove referred to, and the ultimate rights of the parties cannot be determined until final order has been made and filed in said criminal action.

(8) This defendant denies each and every other allegation in said complaint contained not hereinabove admitted or denied.

For a Second Defense and by Way of Plea in Bar.

(1) This defendant denies each and every allegation in said complaint contained not hereinabove or hereinafter expressly admitted or explained.

(2) This defendant alleges that in the due course of business it received through the mails at its home office in the city of Richmond, state of Virginia, a written application, dated October 20, 1928, signed by James R. Thomas for insurance on the life of James Maxie Thomas, in the sum of $3,000, on its whole life plan with premiums payable semiannually, and payable in the event of death to the said James R. Thomas, whose relation to the said James Maxie Thomas was given as father; that, pursuant to said application, and in consideration of the statements therein contained, and the payment of the stipulated premiums, this defendant made up and wrote its policy of insurance on the life of the said James Maxie Thomas for the face amount of $3,000, dated October 30, 1928, and numbered 161069, on the whole life plan, with premiums payable annuallyand payable in the event of the death of the insured to James R. Thomas his alleged father, if living at his decease, otherwise to the insured's executors, administrators, or assigns, and forwarded said policy of insurance for delivery upon receipt of the first semiannual premium thereon, which premium was paid and the policy thereafter delivered.

(3) That thereafter this defendant was notified by James R. Thomas, the designated beneficiary in the above-described policy, that the said James Maxie Thomas, the insured, had died on July 30, 1929, and formal proofs of death were furnished this defendant; that at the same time the said James R. Thomas made demand for the funds alleged to be accruing under the policy of insurance; that thereafter the plaintiff herein on October 11, 1929, through her attorneys, furnished to this defendant certified copy of the order issuing out of the court of probate for Anderson county, S. C, appointing her the legal administratrix of the estate of James Maxie Thomas, deceased, and claim was made in her official capacity for the benefits alleged to be due and owing under the policy of insurance; that, by reason of the facts and things hereinafter set forth, this defendant refused to accede to the request of either of the two claimants on the ground that no liability whatsoever devolved upon this defendant to make any payment thereunder.

(4) That upon receipt of the several claims for payment of the amounts alleged to be due under the policy aforesaid this defendant caused an investigation to be made as to the manner and cause of the death of the said James Maxie Thomas, and such investigation developed, and this defendant so alleges, that the said James Maxie Thomas came to his death by the willful, malicious, and criminal act of the said James R. Thomas, the duly named beneficiary in the policy aforesaid, and for which murderous, unlawful, and malicious act and crime the said James R. Thomas was arraigned, tried, and convicted in the court of general sessions for the county of Anderson, state of South Carolina, and upon such conviction was sentenced by such court to the state penitentiary for the remainder of his natural life.

(5) This defendant further alleges, on information and belief, that the said James R. Thomas procured and caused to be issued on the life of James Maxie Thomas, his alleged son, the policy of insurance above mentioned, together with a number of other pol icies of insurance by other insurers, aggregating an amount in excess of $29,000, in all of which policies he is the duly designated beneficiary, with the predetermined intent to slay and murder the said James Maxie Thomas for the purpose of realizing and obtaining the proceeds of the said life insurance policies, including the policy hereinabove referred to, in which he is named the beneficiary.

(6) This defendant alleges that, because of and on account of the commission of the crime by the said James R. Thomas, of which he has been duly convicted and sentenced by a court of competent jurisdiction as aforesaid, neither the said James R. Thomas, as beneficiary under the policy of insurance above mentioned, nor any one in his behalf or otherwise, is qualified to claim or demand any benefit, right, title, or interest under said policy under the laws of the state of South Carolina.

(7) This defendant further alleges that, for as much as the procurement of the policy herein concerned was the first step in a predetermined and foreordained plan and design, formulated, promoted, and effectuated by the said James R. Thomas with the intent of cheating, defrauding, and swindling this defendant, against the contemplation and terms of the contract in question and in contravention of the state and national laws now obtaining and violative of the public policy as announced, declared and maintained by the United States and the state of South Carolina, the said policy of insurance never became, and is not now, effective, binding, or of legal force, and the plaintiff, Corrie Henderson, as administratrix of the estate of James Maxie Thomas, is not entitled to enforce or assert any rights or benefit thereunder, the said policy being utterly void at its inception.

(8) Moreover, this defendant also alleges, on information and belief, that to...