Jennings v. Clover Leaf Life &

• Decision Date: 11 May 1928
• Docket Number: (No. 12447.)
• Parties: JENNINGS . v. CLOVER LEAF LIFE & CASUALTY CO. et al.
• Court: South Carolina Supreme Court

143 S.E. 668

JENNINGS .

v. CLOVER LEAF LIFE &CASUALTY CO. et al.

(No. 12447.)

Supreme Court of South Carolina.

May 11. 1928.

On Petition for Rehearing June 8, 1928.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Intentional Injury.]

On Petition for Rehearing.

Cothran, J., dissenting.

Appeal from Common Pleas Circuit Court of Orangeburg County; B. H. Moss, Judge.

Action by Gabe Jennings against the Clover Leaf Life & Casualty Company and others. Judgment for plaintiff, and defendant appeals. Affirmed.

The following is the decree of Judge Moss, in the court below:

This is an action on a life and accident policy to recover certain benefits under the several schedules set forth in policy issued by the defendant Clover Leaf Life & Casualty Company to plaintiff.

Since then the Clover Leaf Life & Casualty Company has merged with the defendant American Bankers' Insurance ompany.

This case was originally set for trial in the county court for Orangeburg county on June 15, 1927, but by agreement of counsel the case was marked heard, jury trial waived, and the whole case, both law and fact, was submitted to me for decision.

The defendants admit liability under said policy, but seek to defeat recovery on three grounds: (1) "Misstatement of Age as Avoiding Policy, " (2) "Failure to Give Notices Required by Policy, " and (3) "The Invoking of 'Section B' Under Agreements and Conditions Limiting the Recovery to One-Tenth of the Amount Otherwise Payable for Disabilities Under Policy."

The plaintiff offered testimony in support of the allegations of his complaint, but the defendants offered no testimony, contenting themselves with the offering in evidence of certain notices and letters when the witnesses for plaintiff were under cross-examination.

[ I] It will be observed at the outstart that the three grounds invoked are affirmative defenses, and the burden is on the defendants to establish same by the preponderance of the testimony. Frierson v. U. S. Casualty Co., 100 S. C. 162, 84 S. E. 535; Huguenin v. Continental Casualty Co., 94 S. C. 138, 77 S. E. 751; and U. S. Travellers' Ins. Co. v. McConkey, 127 U. S. 661, 8 S. Ct. 1360, 32 L; Ed. 308.

The three defenses will be considered in the following order:

I. "Misstatement of Age as Avoiding Policy."

The application has the plaintiff's age at 48 years. He denies that he made any statement as to his age, and also denies that he signed the application. This is not controverted in the testimony.

This was apparently a wild guess on the part of the agent, as any man with any judgment at all would know at a glance that Jennings had long since passed the age of forty-eight. His wife was 75 and the agent put her down 44.

Knowledge of the agent is knowledge of the company, and the company is bound by it.

At least two benefits have been paid by the company as well as the tender set up in its answer. This, under the many decisions of our court, would constitute waiver.

Further, this defense is precluded by the sections 4101 and 4102 of Code, vol. 3, and by th» case of Owen v. Bankers' Life Ins. Co., 84 S, C. 253, 66 S. E. 290, 137 Am. St. Rep. 845, construing same.

The force of the Owen Case is admitted, butit is contended that it is not applicable because the policy in question is not a life policy. A reading of the policy shows that it is a life policy with accident features, and regardless of this distinction, we think it applies to the present contract, but if it is held not to apply, there is an abundant evidence of waiver.

II. "Failure to Give Notices Required by Policy."

A substantial compliance is all that is required.

Agreement No. 3 requires written notice to the company within 90 days from the date of the injury. Dr. Stuckey's report of date January 13th fully and completely meets this requirement.

Agreement No. 2 requires that if the insured is disabled by injury for more than 30 days, he or his representative shall furnish the company, every 30 days, with a report fully stating the condition of the insured and the probable duration of his disability.

The fact that Jennings was confined to his bed for 5 weeks would excuse him for the first 30 days, and the report of January 11th, the letter written by Dr. Stuckey for Jennings on January 24th, and the letter of John S. Bowman, written March 14th, answer very fully this requirement. Frierson v. Casualty Co., 100 S. C. 162, 84 S. E. 535.

The doctrine of waiver is here also invoked.

The letter of April 6th, attempting to adjust the loss and making an offer as well as the tender and other acts set up in answer constitute clear waiver.

There is no evidence that the company has suffered any prejudice, and besides the burden is on the defendants to show noncompliance and-nonfulfilment, and they have offered no testimony.

"Failure to give notice of the casualty,

* * * required by the" policy "contract

* * * is an affirmative defense to be proved by the defendant." Huguenin v. Casualty Co., 94 S. C. 138, 77 S. E. 751.

The report of January 13, 1927, by Dr. Stuckey shows that three premiums were paid during the months of December and January, 1927. Can there be any stronger evidence of waiver?

We have been unable to discover upon what theory the premiums paid by the plaintiff during the entire period of the policy contract were offered to be returned, but it seems to us that such act on its part would constitute waiver under all three questions here discussed, and waiver under all the decisions of all the courts is for the jury, and in this case for the court, as jury trial has been waived.

III. Does Section "B" under "Agreements and Conditions" Limit the Recovery to One-Tenth of the Amount Otherwise Payable for Such Injuries?

Before discussing this ground, the court makes the observation that the answer of the-defendants tendering the sum of $59.10 for what is therein denominated "unearned premiums thus far paid, " and the admission that the plaintiff is entitled to one-tenth of the amount asked ($500) admits liability to the amount of $109.10.

The court will now proceed to a discission of the third ground. The solution of the question is dependent upon the intention of the person making the assault.

It is held in the case of Travellers' Protective Ass'n v. Fawcett, 56 Ind. App. 111, 104 N. E. 991, that "where the issue is whether an injury to insured in an accident policy was intentionally inflicted by a third person, the intention of the third person is alone controlling." It is held in the case of Interstate Business Men's Ass'n v. Ford, 161 Ky. 163, 170 S. W. 525, that: "An insured who is killed by robbers meets death by 'external, violent, and accidental means.' "

In the case of Union Accident Co. v. Willis, 44 Okl. 578, 145 P. 812, L. R. A. 1915D, 358, it is held: "An accident policy excluding injuries intentionally inflicted held not to exclude recovery where insured died from a fall due to a blow struck by another, and where the blow, but not the fatal result, was intentional." Here the party was felled by a blow and in falling his head hit the cement sidewalk and was thus fractured and produced death.

"Printed insurance contracts prepared by experts in any respect ambiguous or capable of two meanings must be construed in favor of the assured." Kempf v. Equitable Life Assurance Society (Mo. App.) 184 S. W. 133.

The courts from various jurisdictions in construing policies containing this unjust and drastic provision have sought and have found ways to get around it.

For instance, in the case of American Accident Co. v. Carson, 99 Ky. 441, 36 S. W. 169, 34 L. R. A. 301, 59 Am. St. Rep. 473, the policy is identical with the one under consideration. Carson was intentionally killed by one Jesse Burton, and the question in the case was whether the word "injuries" in the exemption clause included the word "death." It was held that it did not, and beneficiary was allowed to recover. To the same effect is the case of Interstate Business Men's Ass'n v. Dunn, 178 Ky. 193, 198 S. W. 727, 6 A. L. R. 1333, and many other cases annotated in 6 A. L. R. 1338.

Annotation, 20 A. L. R. 1123, deduced from a study of all the cases from all the courts of the land, reads as follows: "It is a well-established rule that where insured is intentionally injured by another, and the injury is not the result of misconduct or an assault by the insured, but is unforeseen in so far as he is concerned, the injury is accidental within the meaning of accident policies, " citing various authorities by the federal Supreme Court and seventeen state Supreme Courts.

"And it has been held that injury was accidental as to the insured, although it was intentional on the part of a burglar, who shot him while they were scuffling together." Allen v. Travellers' Protection Ass'n, 63 Iowa, 217, 143 N. W. 574, 48 L. R. A. (N. S.) 600, and in the case of Collins v. Fidelity & Co., 63 Mo. App. 258, "and the injury has been held accidental where the insured was attacked unexpectedly, without provocation, by one who attempted to assassinate him."

At page 442, vol. 1, Corpus Juris., we read: "The existence of an intent on the part of the person inflicting the injury is necessary, and this intent must be to inflict the injury actually inflicted, " citing Orr v. Travellers' Ins. Co., 120 Ala. 647, 24 So. 997. And: "That where death ensues from the injury, it is necessary that the person inflicting the injury should have had theintent to kill." Now we think the converse of this proposition should be equally true. If the person making the attack intended to kill, he certainly did not have the intent to commit a slight injury. The declaration of the assailant in this case was, "Give up, I have come to kill you."

It is also laid down at page 510 of the same valuable work that it is a question of fact for the jury to decide whether the injury resulted from some cause excepted in the policy, such as whether the injuries were self-inflicted or inflicted...