Hopkins v. Fidelity Ins. Co.
| Decision Date | 07 May 1962 |
| Docket Number | No. 17910,17910 |
| Citation | 125 S.E.2d 468,240 S.C. 230 |
| Parties | Willie Mae Lyles HOPKINS, Respondent, v. FIDELITY INSURANCE COMPANY, Appellant. |
| Court | South Carolina Supreme Court |
Cooper & Gary, Columbia, Murchison, West & Marshall, Camden, for appellant.
J. Clator Arrants, Raeford D. Phillips, Camden, for respondent.
Action is for damages for fraud and deceit. From a circuit court order overruling its demurrer to the complaint and denying, in part, its motion to strike certain allegations, defendant appeals.
The complaint alleged, in substance: that the plaintiff, twenty-six years old, husbandless, illiterate, and dependent for support on the kindness of relations and her own meager income as a part-time farm laborer, was on April 7, 1961, living as a tenant on the farm of one B. L. McCaskill with her mother, an invalid uncle, a minor brother, and her two children,--a son aged five and a daughter aged two and a half years; that on the afternoon of said day plaintiff's said daughter 'was crushed under the wheels of a heavy truck owned by B. L. McCaskill', and died five days later; that thereafter one Paul Semple, as agent and adjuster of the defendant insurance company, persuaded plaintiff's mother to bring plaintiff to his office, where, taking advantage of her state of shock and grief, he maliciously told her that the defendant owed her nothing but would pay her two thousand ($2,000.00) dollars for the death of her child, which sum was 'a plenty', and that unless she would take it and sign a release 'they would pick up plaintiff's minor brother and put him in bad trouble'; that the representations so made by Semple were known by him to be false and were designed, for the benefit of the defendant insurance company, to defraud her of several thousands of dollars to which she was entitled for the death of her child; and that the plaintiff, believing said representations to be true, and relying upon them, signed the release as requested by him and thereby forfeited and lost 'her legal rights to a fair and just monetary value for the death' of her child; to her damage, actual and punitive, three hundred thousand ($300,000.00) dollars.
The demurrer charged, inter alia, that the complaint showed upon its face that the plaintiff had suffered no damage. We think that it should have been sustained upon that ground.
Although the action was laid in fraud and deceit, the claim of damage was founded upon the alleged loss of plaintiff's right to be adequately compensated in money for the death of her child. But if a cause of action for wrongful death existed it was vested in the deceased child's personal representative, and not in the plaintiff. Code, 1952, Section 10-1952. Plaintiff's entitlement to compensation was not in her own right, but as beneficiary of the statutory cause of action. Consideration of the complaint here reveals that it is wholly lacking in factual allegations from which a cause of action for wrongful death may reasonably be inferred. It is not...
To continue reading
Request your trial
-
Mutual Sav. and Loan Ass'n v. McKenzie
...as a remainderman. In Pilkington v. McBain, S.C., 262 S.E.2d 916 (1980), we distinguished the case of Hopkins v. Fidelity Insurance Company, 240 S.C. 230, 125 S.E.2d 468 (1962) in holding a demurrer to an action for fraud should have been overruled because the element of damage was fairly g......
-
Gaskins v. SOUTHERN FARM BUREAU CAS.
...the claim. The trial court dismissed the Gaskins' fraud claim pursuant to Rule 12(b)(6), SCRCP, citing Hopkins v. Fidelity Insurance Company, 240 S.C. 230, 125 S.E.2d 468 (1962). The Court of Appeals reversed, holding Hopkins was a rule of pleading supplanted by the South Carolina Rules of ......
-
Pilkington v. McBain
...challenged the sufficiency of the allegations to state a cause of action. On the strength of the case of Hopkins v. Fidelity Insurance Company, 240 S.C. 230, 125 S.E.2d 468 (1962), the lower court ruled appellant could have sustained no damage by reason of the fraudulent satisfaction since ......
-
Hartsel v. Selective Insurance Co. of South Carolina
... ... liability set forth in the policy. Sloan Const. Co. v ... Central Nat. Ins. Co. of Omaha, 269 S.C. 183, 186, 236 ... S.E.2d 818, 820 (1977) (recognizing duty to defend ... representative, not to Norman and Mary. See ... Hopkins v. Fidelity Ins. Co., 240 S.C. 230, 233, 125 ... S.E.2d 468, 469 (1962) (holding for wrongful ... ...