Lawrence v. Durham Life Ins. Co.

• Court: South Carolina Supreme Court
• Writing for the Court: COTHRAN, A. A. J.
• Citation: Lawrence v. Durham Life Ins. Co., 166 S.C. 203, 164 S.E. 632 (S.C. 1932)
• Decision Date: 31 May 1932
• Docket Number: 13418.
• Parties: LAWRENCE v. DURHAM LIFE INS. CO. et al.

164 S.E. 632

166 S.C. 203

LAWRENCE v. DURHAM LIFE INS. CO. et al.

No. 13418.

Supreme Court of South Carolina

May 31, 1932

Appeal from Common Pleas Circuit Court of Sumter County; S.W. G Ship, Judge.

Suit by Shelley Lawrence against the Durham Life Insurance Company and another. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

L. D Jennings, of Sumter, for appellant.

Tobias & Turner, of Columbia, and Epps & Levy, of Sumter, for respondents.

COTHRAN A. A. J.

On August 13, 1930, the plaintiff brought suit against the defendant in the court of common pleas for Sumter county upon two causes of action, claiming damages in the sum of $7,500 in each. The two causes of action will be separately mentioned.

Omitting the formal parts, the first cause of action sets out that on July 12, 1930, the defendant issued to the plaintiff its certain policy of insurance whereby it insured the plaintiff against death in the sum of $65 agreeing, however, to pay the plaintiff, in the event of total disability, the sum of 85 per week as long as the disability continued. While the policy was in full force, the plaintiff was stricken with paralysis, thereby becoming totally and permanently disabled.

For a while thereafter the defendant paid the plaintiff $5 per week, and later reduced the payments to $2.50 per week. Later still the agent of the defendant went to the plaintiff and by false and fraudulent representations induced the plaintiff to accept the sum of $65 in full of all claims and demands in connection with said policy, and, as a result of the false and fraudulent representations and conduct of the agent of the defendant, the plaintiff was forced to surrender his weekly payments and to accept a lump sum of $65, all to his damage in the sum of $7,500.

The second cause of action is similar to the first, except that the policy was dated May 9, 1921, provided for a payment of $26 in case of death and a weekly payment of $2 for total disability. The weekly payment of $2 was made for a time, was later reduced to $1, and finally the policy was bought for $26. The allegations of fraud and misrepresentation of the agent are similar to those in the first cause of action. Damages were likewise demanded in a similar amount, to wit, $7,500.

The answer of the defendant, inter alia, admitted the payment to the plaintiff of $65 for one policy and $26 for the other, denied all allegations of fraud and misrepresentation, and alleged that the payment of the $91 for both policies was with the full consent, approval, and understanding of the plaintiff and also of his wife, the beneficiary.

During the course of the trial before Judge Shipp and jury at Sumter at the fall, 1931, term of the court, it developed that the plaintiff had not paid or tendered to the defendant the $91 paid to him. This fact being noticed by the circuit judge, he, of his own motion, ordered a nonsuit. From his ruling this appeal is taken, and the sole question presented before us is as to the correctness of that ruling.

The appellant admits the correctness of the rule announced in the case of Levister v. Southern Railway Company, 56 S.C. 508, 35 S.E. 207, 209, but contends that that well-established rule does not apply in this case. We quote the following excerpt from the Levister Case: "To allow a person, after executing a release of all claims against another in consideration of a sum of money paid to him, to repudiate obligations which he assumed by executing the release, and at the same time reap the benefits which he received by executing the release, which would be a fraud would be asking a court to release him from a fraud which he claims was practiced upon him by another, and at the same time committing a fraud upon such other person; for certainly it would be a fraud to obtain money paid to him in consideration that he would do something which he now claims he is not bound to do and will not do, for certainly, on the theory on which he proceeds, the money which he retains is not his money, but...