Legrande v. Legrande

• Decision Date: 07 November 1935
• Docket Number: 14164.
• Parties: LEGRANDE v. LEGRANDE.
• Court: South Carolina Supreme Court

182 S.E. 432

178 S.C. 230

LEGRANDE v. LEGRANDE.

No. 14164.

Supreme Court of South Carolina

November 7, 1935

Appeal from Common Pleas Circuit Court of Richland County; M. S Whaley, Judge.

Action by Mrs. E. H. Legrande against Mrs. Louise C. Legrande. From a judgment for plaintiff, defendant appeals .

Affirmed.

John E Edens, of Columbia, for appellant.

Edwin H. Cooper and John Hughes Cooper, both of Columbia, for respondent.

G DEWEY OXNER, Acting Associate Justice.

Plaintiff in this case was the wife and the defendant the mother of Edward Horace Legrande, who died in the Baptist Hospital, in the city of Columbia, on December 26, 1932. Seven or eight years prior to his death he was insured under a group policy of insurance, issued by the Ætna Life Insurance Company to the employees of the city of Columbia. This insurance certificate was in the sum of $2,000 and designated assured's mother, the defendant-appellant herein, as beneficiary. The plaintiff and the said Legrande were married in 1926. Defendant resided with her son and daughter-in-law for three or four years prior to his death. For some reason, Legrande did not keep the certificate of insurance at his home, and his wife, while she knew of the existence of same, had never seen the certificate. The beneficiary designated in said certificate was never changed. Some few months prior to his death, Legrande turned the insurance certificate over to Gary Paschal, Esquire, of Columbia, to investigate the disability feature, and shortly after the death of Legrande, Mr. Paschal, as attorney for defendant-appellant, collected the amount of the policy. Mr. Paschal paid the net proceeds, amounting to $1,455 after deduction of fees and costs, to the mother, defendant-appellant in this action, as the beneficiary designated in said policy of insurance.

Plaintiff alleges in her complaint that a few days prior to the death of her husband, Edward Horace Legrande, he summoned her and his mother to his bedside and informed them of the existence of said policy; that he stated he wanted his wife to receive one-half of the benefits of said policy; that he had a right to change the beneficiary at any time, which he would exercise, if necessary, in order to accomplish this purpose; that thereupon defendant agreed with her son that she would hold said policy for the benefit of herself and plaintiff, and, upon his death, would collect the proceeds and distribute them equally between herself and the plaintiff; and that, in reliance upon this promise, Legrande agreed not to change the beneficiary and made no attempt to do so. Plaintiff further alleges that the defendant breached said agreement by failing to pay over to her any part of the proceeds of said insurance. She seeks to recover judgment against the defendant for one-half of the amount of said policy, and have the proceeds of said insurance impressed with a trust for the payment of such judgment.

In her answer, defendant denied that there was any such agreement made by her, or that plaintiff is entitled to any portion of said proceeds of insurance collected by her. She alleges, as a second defense, that said policy "contained a provision and clause to the effect that the beneficiary could only be changed by written request to the office of the company, together with said policy of insurance, so that such change of beneficiary might be endorsed on said policy"; and that there had been no change of beneficiary in compliance with the provision of said policy. As a third defense, she alleges that the alleged agreement set up in the complaint is testamentary in character, which does not comply with the statutory law of this state, and there could be no recovery thereunder. Further, as a fourth defense, she alleges that such alleged agreement is without consideration or mutuality, and therefore unenforceable.

At the trial, defendant made a motion for a nonsuit at the close of plaintiff's testimony, which was refused; and, at the close of all the testimony, a motion for a directed verdict, which was refused. The case was submitted to a jury, resulting in a verdict for plaintiff for one-half of the net proceeds of said insurance. Motion for new trial by defendant was overruled. From judgment entered on said verdict, defendant appeals, and by her exceptions imputes errors on the part of the court in refusing the motion for nonsuit and directed verdict, in the admission and exclusion of certain testimony, and in its charge to the jury.

For a proper understanding of these exceptions, a brief review of the testimony is necessary. In support of the alleged agreement set out in the complaint, plaintiff testified, in substance, that on the occasion of her husband's last illness, just before leaving home for the hospital, the following conversation took place between herself, her husband, and his mother: Her husband stated that he did not know whether he would return alive from the hospital, informed them of the policy in question, and further stated that he wanted this insurance equally divided between his mother and his wife; that, if such could not be carried out, he had a right to change the beneficiary at any time. Thereupon defendant, his mother, stated: "Son, don't worry about your insurance. That will be carried out just like you say. I promise you that it will be equally divided between me and your wife, and I promise you we will try to get along the best we can." Plaintiff testified that immediately after this the ambulance came and her husband was carried to the hospital, where he later died. Plaintiff's daughter, by a former marriage, testified that she was present when the above conversation took place, and corroborated her mother's testimony. Several other witnesses testified as to statements alleged to have been made by defendant, tending to show a promise on her part to equally divide the proceeds of such insurance. Defendant, in her testimony, denied the existence of any such agreement or any promise on her part to pay any portion of the proceeds of said policy to the plaintiff.

We shall not consider the exceptions seriatim.

Appellant objected to that portion of the conversation wherein the deceased was alleged to have stated that he had a right to change the beneficiary at any time upon the grounds (1) that the policy would be the best evidence as to the right to change the beneficiary, and (2) that it was hearsay. The objection was overruled. It is urged that this testimony was incompetent. The policy was not introduced in evidence, nor does the testimony disclose where it was. The trial judge inquired of counsel as to the whereabouts of the policy, to which appellant's counsel replied that his information was that it was delivered to the Ætna Life Insurance Company. In order to establish the right of the assured under a policy of insurance to change the beneficiary, ordinarily, the policy would have to be produced or its production excused. But the right to change the beneficiary is, for the purpose of this case, sufficiently shown by the pleadings. The complaint alleges that insured "had a right, under the terms of the policy, to change the beneficiary at any time." The answer alleges that the policy "contained a provision and clause to the effect that the beneficiary could only be changed by written request to the office of the company together with said policy of insurance, so that such change might be endorsed on said policy." As was said in the case of Henry Mercantile Co. v. Railway Co., 104 S.C. 478, 89 S.E. 480, 481, the essential fact "was not a disputed question." The second objection to this testimony, to the effect that it was hearsay, is not well taken for the reason that the record shows that appellant was present and took part in the conversation.

It is contended that the court erred in refusing the motions for nonsuit and directed verdict upon the following grounds: (1) That there was no evidence that assured reserved the right to change the beneficiary; (2) that the alleged agreement is testamentary in character and the evidence is not sufficient under the statute of wills; (3) that there was no consideration for the alleged agreement and it lacked mutuality of...