Herndon v. Continental Cas. Co.

• Decision Date: 10 April 1928
• Docket Number: 12424.
• Citation: 142 S.E. 648,144 S.C. 448
• Parties: HERNDON v. CONTINENTAL CASUALTY CO.
• Court: South Carolina Supreme Court

142 S.E. 648

144 S.C. 448

HERNDON v. CONTINENTAL CASUALTY CO.

No. 12424.

Supreme Court of South Carolina

April 10, 1928

Appeal from Richland County Court; M. S. Whaley, Judge.

Action by O. B. Herndon against the Continental Casualty Company. From a judgment overruling a demurrer to the complaint, defendant appeals. Reversed, demurrer sustained, and complaint dismissed.

Hunter A. Gibbes, of Columbia, for appellant.

C Inglesby Dial and Cooper & Winter, all of Columbia, for respondent.

CARTER J.

This is an appeal from an order of his honor M. S. Whaley, judge of the county court of the county of Richland, in which court the action was commenced, overruling a demurrer to the complaint. The facts alleged in the complaint pertinent to the questions raised by the demurrer are, in substance, as follows:

October 27, 1919, the defendant, Continental Casualty Company, issued to the plaintiff, O. B. Herndon, a life insurance policy whereby the defendant insured the life of the plaintiff (the amount of the policy not being stated in the complaint). The plaintiff paid therefor the regular premium charged, $3.30 per month, from October 27, 1919, to November 1, 1922, and in consideration of additional insurance later issued, paid to the defendant a premium of $3.55 per month, from November 1, 1922, to November 10, 1925; that on or about the 1st of August, 1924, the defendant canceled the plaintiff's said policy of insurance, but failed at the time of such cancellation to notify the plaintiff thereof, having canceled the said policy also without the consent or approval of the plaintiff; that after the cancellation of said policy the defendant, its servants and agents received and took and collected the said amount of money from the plaintiff willfully, fraudulently, and unlawfully, with intent to cheat and defraud the plaintiff, and willfully, fraudulently, and unlawfully collected, received, and converted the said money to its own and separate use, etc. The plaintiff further alleges that, although repeated demands have been made upon the defendant to return the said money so collected, the defendant has willfully, fraudulently, and unlawfully failed and refused to return the said money to the plaintiff, to plaintiff's injury and damage in the sum of $3,000, and demands judgment against the defendant for that amount.

The defendant demurred to the complaint on the ground that the complaint failed to state facts sufficient to constitute a cause of action, in the particulars set forth in the demurrer. This demurrer was overruled by his honor Judge Whaley, from which order the defendant has appealed to this court imputing error to his honor Judge Whaley, as set forth under...