Holder v. Sovereign Camp, W. O. W.

• Decision Date: 05 May 1936
• Docket Number: 14287.
• Citation: 185 S.E. 547,180 S.C. 242
• Parties: HOLDER v. SOVEREIGN CAMP, W. O. W.
• Court: South Carolina Supreme Court

185 S.E. 547

180 S.C. 242

HOLDER v. SOVEREIGN CAMP, W. O. W.

No. 14287.

Supreme Court of South Carolina

May 5, 1936

Appeal from Spartanburg County Court; Arnold R. Merchant, Judge.

Action by J. T. Holder against the Sovereign Camp, Woodmen of the World. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

Horace L. Bomar, of Spartanburg, for appellant.

Johnson & Johnson and Nicholls, Wyche & Russell, all of Spartanburg for respondent.

FISHBURNE Justice.

The plaintiff instituted this action in the county court of Spartanburg county against the defendant-appellant, Sovereign Camp of the Woodmen of the World, for the recovery of damages, actual and punitive, on account of the alleged wrongful and fraudulent lapse or cancellation of a certain certificate of insurance. The defendant's answer admitted the issuance of the original certificate to the plaintiff on May 31, 1904; that it was exchanged for a substitute certificate on October 24, 1905, the latter certificate being the one upon which the action is based; and further alleged that the plaintiff failed to comply with the by-laws of the defendant association, and did not pay any premiums, as required by the terms of the certificate, after November 1929, on account of which the plaintiff's certificate became null and void. The trial resulted in a verdict for the plaintiff in the amount of $500, actual damages.

During the course of the trial the defendant objected to certain testimony elicited from the witness, C. C. Brown, by the plaintiff, which is made the basis for the first exception on appeal. The defendant has also appealed from the rulings of the trial judge overruling motions made for a nonsuit and for a directed verdict.

The first exception assigns error upon the ground that the testimony objected to is speculative, and that it was the mere opinion of the witness, based upon a hypothetical question.

The witness, C. C. Brown, was the financial secretary of Magnolia Camp Woodmen of the World, in the city of Spartanburg, and the person to whom local camp dues and insurance assessments or premiums were payable. The plaintiff was a member of this camp. This witness was asked by counsel for the plaintiff if he would have accepted payment of the November dues if Mr. Holder or his son had offered payment without the record of the plaintiff's membership.

The plaintiff previously to this point in the trial had testified repeatedly that on several occasions he had offered to pay his November, 1929, assessment to this witness. It also appears from the record, prior to this stage of the trial, that the plaintiff's son had offered to pay the plaintiff's November assessment to Mr. Brown on at least three occasions. The record is equally clear at several points that the witness, Brown, as financial secretary, had refused to accept the plaintiff's assessment and dues because he was unable to find any record of plaintiff's membership. Mr. Brown had previously testified that he could not find the record of plaintiff's membership, and that both the plaintiff and his son came to see him several times with reference to plaintiff's insurance premiums and dues.

Counsel for the defendant objected to the witness' answering the question, first, upon the ground that it was a hypothetical question. When the judge inquired if his objection was based upon the ground that the question was speculative, counsel for the defendant replied: "The fact was, no money was tendered. The question is improper." The trial judge overruled the objection, and the witness thereupon answered:

"I had just taken over the job as secretary with probably five or six hundred members. Its dues came in small amounts of many odd cents, and the Sovereign Camp insists on records, and, not being able to find the record of Mr. Holder, I do not think I would have accepted the money."

It may be regarded as doubtful if the appellant has properly laid the foundation for this ground of appeal, but waiving this, we will pass upon it.

The testimony was incompetent and should have been excluded. The answer of the witness was a mere opinion or conjecture. Roberts v. Virginia-Carolina Chemical Company, 84 S.C. 283, 66 S.E. 298; Welch v. Clifton Mfg. Co., 55 S.C. 568, 33 S.E. 739. We do not think, however, that the error was prejudicial, or of so serious a nature as to justify a reversal of the judgment. That Mr. Brown had refused to accept payment of the plaintiff's November, 1929, assessment was fully and properly established by other evidence.

It is a well-settled rule that the admission of improper evidence is harmless, where the fact thereby sought to be shown is otherwise fully and proper established. Rainwater v. Bonnette, 151 S.C. 474, 149 S.E. 254.

By exception 4, error is assigned to the trial judge in a certain isolated portion of his charge to the jury on the question of fraud. The record discloses that the judge instructed the jury fully and comprehensively on this issue, and charged the special requests of the defendant on this point without modification. The portion of the charge objected to is:

"The general rule is that fraud cannot be presumed. But by that I do not understand that it may not be established by presumptive evidence. Such facts as will satisfy a reasonable mind of its existence are all which the law requires. The rule means no more than that fraud shall not be presumed without evidence. You cannot presume fraud without some evidence."

After reading the charge as a whole, we do not think it reasonably possible that the jury could have been misled by this instruction. The trial judge had previously instructed the jury:

" Fraud is never presumed; on the contrary, honesty is presumed. To establish

...