Holloman v. Life Ins. Co. of Virginia

• Citation: 7 S.E.2d 169,192 S.C. 454
• Decision Date: 13 February 1940
• Docket Number: 15016.
• Parties: HOLLOMAN v. LIFE INS. CO. OF VIRGINIA.
• Court: United States State Supreme Court of South Carolina

7 S.E.2d 169

192 S.C. 454

HOLLOMAN v. LIFE INS. CO. OF VIRGINIA.

No. 15016.

Supreme Court of South Carolina

February 13, 1940

McEachin & Townsend, of Florence, for appellant.

Willcox Hardee & Wallace, of Florence, for respondent.

L. D LIDE, Acting Associate Justice.

The complaint herein alleges that the defendant insurance company solicited the plaintiff to allow her son, Roy Holloman, to take out a policy of insurance on her life, but that she refused to have the policy issued, stating to defendant's agent that she had sufficient insurance and did not wish other policies issued; and that upon her definite refusal to have the policy issued or to sign an application therefor defendant's agent immediately went to plaintiff's son and falsely informed him that she had in fact signed an application for a policy and had consented to its being issued with him as beneficiary; whereupon her son, Roy Holloman, agreed to take out such a policy, which was accordingly issued upon the life of plaintiff in the sum of $200, he being the beneficiary thereof; and that the action of defendant in issuing such policy was in furtherance of a fraudulent scheme and design detrimental to plaintiff. It is further alleged that the policy was held by her son for some time before the plaintiff discovered its issuance, but upon such discovery she informed him that she had forbidden the issuance of the policy and directed him to drop it. It is further alleged that by reason of the facts above stated the plaintiff was damaged in the sum of $3,000.

The defendant demurred to the complaint, in that, it fails to state facts sufficient to constitute a cause of action; and the demurrer was sustained by Judge Dennis, the cause coming before us upon plaintiff's appeal from his order.

There are five exceptions raising, as set forth in appellant's brief, three questions, all of which will be briefly discussed.

"Question I. Does the complaint allege a cause of action for fraud and deceit in securing a speculative insurance contract?"

It seems to us that the most casual reading of the complaint will show that if any cause of action for fraud and deceit is therein stated, or even suggested, it is not one in favor of the plaintiff; for the alleged false representation was not made to plaintiff but to her son. Moreover, there is no allegation of any of the other material elements of fraud and deceit, such as, that the plaintiff relied on an alleged false representation and acted thereon to her damage. The case of Cook v. Metropolitan Life Ins Co., 186 S.C. 77, 194 S.E. 636, cited by appellant, well states the necessary elements in a suit against an insurance company for actionable fraud; and by comparison with the complaint herein demonstrates its insufficiency in this respect.

The next question we take up for consideration is: "Question III. Does exposure to the dangers of speculative insurance entitle the plaintiff to damages?"

While the point does not appear to have ever come before this court, the authorities generally are to the effect that except in the case of an infant a policy of life insurance taken out without the knowledge or consent of the insured person is not enforceable; at least, in the absence of waiver or estoppel. 14 R.C.L. 889; Life Insurance Clearing Co. v O'Neill, 3 Cir., 106 F. 800, 54 L.R.A. 225. We have not found any authority, however, for the view that the issuance of a policy of life insurance without the consent of the insured would give rise to a cause of action in tort in favor of the insured person. But even if this might be true under some exceptional circumstances, we find nothing in the complaint...