Lane v. N.Y. Life Ins. Co

• Decision Date: 19 October 1928
• Docket Number: (No. 12510.)
• Citation: 145 S.E. 196
• Parties: LANE et al. v. NEW YORK LIFE INS. CO.(two cases).
• Court: South Carolina Supreme Court

145 S.E. 196

LANE et al.

v.NEW YORK LIFE INS. CO.(two cases).

(No. 12510.)

Supreme Court of South Carolina.

Oct. 19, 1928.

LIFE INS. CO.(two cases).

Cothran, J., dissenting.

Appeal from Common Pleas Circuit Court, of Dillon County; E. O. Dennis, Judge.

Two actions by Mamie M. Lane and husband against the New York Life Insurance Company. From a decree for plaintiffs, de-fendant appeals. From the supplementary decree, plaintiffs appeal. Modified and affirmed.

The complaint, answer, decrees, and exceptions follow:

Complaint.

Omitting the formal parts, the complaint reads as follows:

(2) That on the 9th day of March, 1921, the defendant, for and in consideration of a premium of the sum of $109.62 paid to it, entered into a contract of insurance on the life of the plaintiff Joe P. Lane, in favor of Mamie M. Lane, beneficiary, being denominated as policy No. 6926303.

(3) By the terms of which policy the defendant agreed to insure the life of the said Joe P. Lane in the sum of $3,000.

(4) Paragraph 4 is a partial copy of the policy No. 6926303, and, since both policies are hereinafter printed in full, paragraph 4 of the complaint is not printed.

(5) That subsequently, and on the 15th day of February, 1922, the plaintiff Joe P. Lane and the defendant entered into a contract whereby the premiums mentioned in the policy were changed from annual to semiannual payments.

(6) That the plaintiffs have complied with all the obligations and duties devolved upon them under the terms of the foregoing policy of insurance and said subsequent change of contract.

(7) That, however, on or about the 29th day of June, the defendant herein wrongfully and unlawfully attempted to cancel said policy of insurance as a valid and outstanding contract without any cause or reason therefor.

(8) That the plaintiff's rights and interest under said policy of insurance is a valuable one, and these plaintiffs are entitled that said contract be recognized by defendant, and that said defendant be required to maintain and recognize the said contract as valid, binding, and outstanding obligation, and that said defendant had no right to cancel or forfeit said contract.

(9) That the attempt on the part of the defendant to so forfeit and cancel said contract is an injury to these plaintiffs.

Wherefore plaintiffs pray that the court so declare that said policy of insurance is in full force and effect, and that plaintiffs have such other and further relief as may seem just.

The complaint in the other case is identical with the foregoing, except as to paragraph 4, where the policy is copied, the terms of the policy not being the same. The policy number is different, and the premium is different, the policy number being 6926302, and the premium being $106.98. The foregoing, however, is sufficient printing of the complaints, as hereinafter the policies themselves are printed.

Answer.

(1) Admits the allegations of paragraph 1 of the complaint that the defendant is a corporation engaged in the life insurance business, and as such is authorized to carry on its business in the state of South Carolina.

(2) This defendant admits the allegations of paragraph 2 of the complaint that it did, on the 9th day of March, 1921, execute and deliver the policy of insurance described therein, and, as alleged in paragraph 3 of the complaint, the amount of insurance represented by said policy was $3,000.

(3) With reference to the allegation of paragraph 4 of the complaint, this defendant alleges that the matter therein set forth as forming a part of the policy in question is apparently correctly copied from the policy contract alleged and described in the complaint, but, so that there might be no mistake as to verbiage or phraseology, this defendant would ask the court's careful attention to such original or exact copy as may be introduced in evidence hereafter in this cause.

(4) With reference to the allegations of paragraphs 5, 6, 7, 8, and 9 of the complaint, this defendant denies each and every allegation thereof, except as is hereinafter specifically admitted.

For a Second Defense.

(1) This defendant admits that on the 9th day of March, 1921, pursuant to written application therefor, it issued its policy more fully described in the complaint herein on the life of Joe P. Lane, said policy being Number 6, 926, 303; that thereafter, and on February 15, 1922, by written agreements between the said Joe P. Lane and this defendant company, the manner of payment of premiums under this policy was changed from the annual basis to a semiannual basis beginning with the first premium due in March, 1922; that the semiannual premium on the policy described in the complaint in this action was $57.

(2) That from the records of this defendant company and the written evidence in its files on March 9, 1922, the insured, Joe P. Lane, paid to this defendant the sum of $10.50, and signed a form of blue note agreement whereby the time for the payment of the premium was extended to June 9, 1922, and at that time the cashier of this defendant's office at Columbia, S. C, gave a receipt on a regular form for that purpose to the insured, Joe P. Lane, which receipt set forth the form of note given as stated above, and under the terms of said receipt and note it was provided:

"That if this note is paid on or before the date it becomes due, such payment, together with said cash, will then be accepted by said Company as payment of said premium, and all rights under said policy shall thereupon be the same as if said premium had been paid when due; That if this note is not paid on or before the day it becomes due, it shall thereupon automatically cease to be a claim against the maker, and said Company shall retain said cash as a part compensation for the rights and privileges hereby granted, and all rights under said policy shall be the same is if said cash had not been paid or this agreement made, except only that the time within which the owner may make a choice of benefits after lapse, as provided in said policy, is hereby extended for three months after the due date of this note, but no longer; That said Company has duly given every notice required by its rules or by the laws of any state in respect to said premium, and in further compensation for the rights and privileges hereby granted the maker hereof has agreed to waive and does hereby waive, every other notice in respect to the said premium or this note, it being well understood by said maker that the said company would not have accepted this agreement if any notice of any kind were required as a condition to the full enforcement of all its terms."

(3) That the said insured failed to pay the amount stated in the note agreement on or before June 9, 1922, and the policy lapsed as of the due date of the premium, to wit, on March 9, 1922, of which fact the said insured, Joe P. Lane was thereafter advised.

(4) That thereafter, on June 29, 1922, as is shown by the records of this defendant, the said insured wrote the Columbia, S. C, branch office, stating that he had been under the impression that the note was due on July 9, 1922, and not June 9, 1922, and inclosed his check for a sum sufficient to pay the note in question; that this defendant's office at Columbia, S. C, thereupon returned the check, and advised the insured that he might apply for reinstatement and remit with his application the amount necessary to pay the note, which remittance would be held subject to insured's order pending the company's consideration of the application. Thereafter, on or about July 10, 1922, the insured sent to the Columbia branch office the said application for reinstatement and a letter or statement from a certain doctor in the city of Baltimore concerning his health, and along with said application for reinstatement the insured inclosed his check for a sum sufficient to pay the note described above, and, upon receipt of these papers, the insured was advised that the same had been forwarded to the home office of the company for attention, and, pending this defendant's consideration of his application for reinstatement, the remittance would be held subject to his order.

(5) That, after a thorough consideration of said application for reinstatement by this defendant in its home office, and after considering carefully the statement of Dr. Julius Friedenwald of Baltimore, Md., which accompanied the application for reinstatement as aforesaid, which statement showed that the insured had been suffering from a gastric ulcer, this defendant determined and decided that it could not reinstate the policy described above, which had lapsed for nonpayment of premium on March 9, 1922, and on the 7th day of August, 1922, advised the insured, Joe P. Lane, to this effect, and returned the check which he had sent with his application for reinstatement as set forth hereinabove.

(6) That thereafter the insured, on August 15, 1922, sent his certain check covering the premium on the policy described in the complaint herein, claiming the same to be for the amount of the premiums due on said policy for September 9, 1922, and March 9, 1923, which check was promptly returned by this defendant's branch office at Columbia, S. C.; again on March 29, 1923, the insured sent his certain check to the Columbia branch office of this defendant for a sum which he claimed would cover the premium payment due March 9, 1923, which check was promptly returned to the said Joe P. Lane, and at that time the said applicant was advised that the company could not consider the matter of the reinstatement of the policy until it received a medical examination by Dr. Craig of Dillon, S. C, on a form which it therewith inclosed, and, if the insured would have such examination and return the check for an amount sufficient to cover the premium due to date, and also check for the 1923 premium, with interest at the rate of 5 per centum on premiums not paid from March 9, 1922, the reinstatement of the policy would be...