Cothran, J., dissenting.
Appeal from Common Pleas Circuit Court of Bamberg County; Wm. H. Townsend, Judge.
Action by Marrie Hightower against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Statement of Facts.
This is an action on a policy of life insurance, in which the plaintiff herein was named as the beneficiary. At the conclusion of the plaintiff's testimony, the defendant made a motion for a nonsuit, which was refused, and at the conclusion of all the testimony the defendant made a motion for a directed verdict, which was also refused. The jury rendered a verdict in favor of the plaintiff for $1,000 (the full amount claimed), and the defendant appealed upon the following exceptions:
(1) "His honor, the presiding judge, erred in overruling defendant's motion for nonsuit upon the ground of such motion; the error being that his honor should have held that under the terms of the contract of insurance and plaintiff's testimony the policy in question had lapsed for nonpayment of premiums, and should have granted the nonsuit."
(2) "His honor, the presiding judge, erred in overruling defendant's motion for directed verdict upon the ground of such motion; the error being that his honor should have held that under the policy and testimony there was no evidence whatsoever of any waiver by defendant company, and should have directed a verdict for defendant, "
The defendant relied upon the following as a defense:
"Said Elijah Hightower made written application to defendant for insurance on his life, and pursuant to said application defendant duly made and delivered to said Elijah Hightower its said policy of insurance, numbered two million three hundred eight thousand six hundred seventeen-A (230S617-A) for one thousand ($1,-000.00) dollars, said policy bearing date April 14, 1919, a true and correct copy of which is hereto attached, marked 'Exhibit A, ' and made a part thereof. Said policy was made in consideration of the payment of the first premium thereon of fifteen and 79/100 ($15.79) dollars, the receipt of which was acknowledged therein, which said premium constituted payment for the period terminating on the 14th day of October, 1919, but that in and by the terms of said policy it was provided that said policy was issued in consideration of the application therefor and of the payment of the semiannual premium of fifteen dollars and seventy-nine cents upon each 14th day of April and October there-after for the first twenty (20) years, and of the payment annually thereafter of ten ($10) dollars on the 14th day of April until the deathof the insured. That in respect to the payment of premiums said policy provided: 'All premiums are payable in advance at said home office or to any agent of the company upon delivery, on or before date due, of receipt signed by the president, vice president, secretary, or actuary of the company, and countersigned by said agent.' 'A grace of thirty-one days, without interest charge, shall be granted for the payment of every premium after the first, during which period the insurance shall continue in force. * * * The payment of a premium or installment thereof shall not maintain the policy in force beyond the date when the next premium or installment thereof is payable except as herein provided.' That said Elijah High-tower duly paid the semiannual premiums due on October 14, 1919, and April 14, 1920, either on the due dates thereof or within the period of grace above specified, but wholly failed to pay the premium due October 14, 1920, or any portion or installment thereof, whereby, under the terms of said policy, said policy lapsed on November 14, 1920, and there was no insurance in force under said policy or otherwise at the time of the death of said Elijah Hightower."
The policy also contains this provision:
"Reinstatement.—If this policy shall lapse in consequence of nonpayment of any premium when due, it may be reinstated at any time upon the production of evidence of insurability satisfactory to the company. * * *"
Testimony.
In so far as pertinent, the testimony for plaintiff was as follows:
Marrie Hightower, colored, being duly sworn, testified on direct examination:
"I can read; that (referring to exhibit) is the policy delivered to my husband by defendant. I remember that premiums were due in amount $15.79 every six months in April and October. When the October, 1920, premium came due, the money was not sent off on the 14th of October; it was a few days late; it was sent by money order on 30th of November, 1920, to Columbia. My husband remained in good health about three weeks after 30th of November, 1920.
"Q. When the October premium came due, who notified you? A. No gentleman at all.
"Q. Did you receive any written notice? A. No, sir.
"After the money was sent off, I did not hear anything from the defendant until about 24th of January, 1921, after Elijah was dead. After 30th of November and before Elijah died I wrote the company once or twice. The letter dated 24th of December is one letter I wrote. (Exhibit No. 4.) I wrote the company to know if they received the money and what they were going to do about it, and got no reply at all."
Cross-examination:
"The defendant sent my money order back to my lawyer; they kept it a good while, but did not keep it and spend it. I did not get a letter from the company, dated 1st of December, until the 24th of January. I admit I did not pay the premium when due; that's why I wrote the letter; the premium was due on 14th of October.
I never got a letter, nor a reinstatement blank, till Elijah was dead. I never got but one letter from them. My correct address is Bamberg, South Carolina, and it was not changed between 14th of October and time Elijah died.
"Q. How many times did you hear from them between the time you first sent the money order and the death of your husband? A. Did not hear from them; not one time.
"Q. Did you get a letter from them, in which they told you that your policy was already overdue, and they could not take your money, but they would send you a form to have Elijah fill out, and if he filled it out and stood a good examination they would send it to the home office, and the home office would reinstate the policy? A. What time you mean?
"Q. On the 1st of December. A. No, sir.
"Q. On the 1st of December? A. No, sir.
"Q. Did they ever send you a letter like that? A. No, sir; I never heard from them.
"Q. They never sent you a blue thing for Elijah to fill out? A. No, sir; when I got the letter, he was dead.
"Q. They did not write you but one letter? A. No, sir; just one."
Redirect examination:
"You know that your husband lived long enough after the money was sent off to be reinstated, if he had a chance to? A. Yes, sir.
"Q. And he was in good health? A. Yes, sir."
The pertinent testimony of defendant was as follows:
Miss E. J. Barnes, white, being duly sworn, testified as follows:
"I am assistant cashier of defendant in its branch at Columbia. I received the money order for $15.79 from Elijah Hightower on 1st of December. I then wrote him a letter (Exhibit No. 3), and filled out the necessary part of the reinstatement blank, and mailed the letter to Elijah Hightower, Bamberg, South Carolina. I personally mailed the letter. I also got a letter from Elijah Hightower, dated the 24th of December, and thereupon wrote him another letter, asking him to return that blank (Exhibit No. 5). Some time afterwards I sent another letter, with another reinstatement or revival form. (Here the original revival form is identified by Miss Barnes as being in her handwriting, this form having been produced by plaintiff under notice to produce. Exhibit No. 6. Miss-Barnes also identified the stub of the revival form retained at Columbia office, and introduced in evidence. Exhibit No. 6.) I attached this stub to the money order, and put both in the safe, to be kept until the revival form was returned. I wrote Hightower a third letter, just like the first one, inclosing another revival form."
Cross-examination:
"Q. Did I understand you to say that you mailed these letters yourself? A. Yes, sir. I know I mailed the letters. I dropped them in the mail box, but, of course, don't know of my personal knowledge whether or not they arrived in the town of Bamberg."
J. R. Roseberry, white, being duly sworn, testified as follows, on direct examination:
"I am manager of the Columbia office of defendant. I know the money order was received about 1st of December. I got sick and left the office about 17th of December, 1920, and returned to the office about 7th of April, 1921. Mr. W. F. Brehm took charge of the office about the time I left, and continued in charge until I returned. When premium payments are presented in person beyond the grace period, our custom is not to accept them, except on an application for reinstatement; but, of course, we cannot prevent people mailing in premium payments after the expiration of the grace period. When such premiums are mailed in, we immediately write the insured that the policy has been canceled, and send them application for reinstatement. We attach the money to the reinstatement stub and put both in the safe. We do not deposit or use the money. We keep the money pending correspondence with the insured as to his reinstatement. The length of time we keep the money varies; some people respond promptly, but there are others to whom we have to write several letters. If the case seems hopeless, we return the money and tell the insured his policy has been canceled. The policy in this case was canceled on 14th of November, the day the grace period expired; but the actual record of cancellation was made in our office on 27th of November, the day we returned to the home office the official premium receipt, unpaid."
W. F. Brehm, white, being duly...
