Muckelvaney v. Liberty Life Ins. Co.

• Decision Date: 01 August 1973
• Docket Number: No. 19669,19669
• Citation: 261 S.C. 63,198 S.E.2d 278
• Court: South Carolina Supreme Court
• Parties: Margaret I. MUCKELVANEY, Appellant, v. LIBERTY LIFE INSURANCE COMPANY, Respondent.

Page 278

198 S.E.2d 278

261 S.C. 63

Margaret I. MUCKELVANEY, Appellant, v. LIBERTY LIFE INSURANCE COMPANY, Respondent.

No. 19669.

Supreme Court of South Carolina.

Aug. 1, 1973.

Thomas Dewey Wise, of Way, Burkett & Wise, Charleston, for appellant.

Bailey & Buckley, Charleston, for respondent.

BRAILSFORD, Justice:

In this action to recover the death benefit of $25,000.00 under a life insurance policy, the circuit court sustained a demurrer to the complaint for insufficiency of facts to state a cause of action. The beneficiary, who is the widow of Amar Muckelvaney, the insured, has appealed on a number of exceptions, which, according to the brief, raise a single question, 'Do the allegations of the complaint show the existence of a contract of insurance?'

The complaint declares upon the written policy, including the application, and copies of both are incorporated into the complaint by reference. By its terms, the effective date of the policy was the date of issue, I.e., January 1, 1972, upon payment of the first premium during the life of the insured. The application is dated November 3, 1971, and the following appears under 'Special Requests,' 'Please date policy January 1, 1972.' The insured was accidentally killed on December 10, 1971, some twenty days prior to the date of issue specified in the policy. We must determine whether the additional allegations of the two 'count' complaint, which we summarize below, are, nevertheless, sufficient, if proved, to establish an existing contract of insurance on the date of insured's death.

'Count One'

The policy for which plaintiff's husband applied on November 3, 1971, was solicited by defendant's agent, one Dubois, who had sold, and serviced, a number of policies to Mr. and Mrs. Muckelvaney over a period of several years. It was the agent's practice 'to credit the monthly premiums on behalf of the Plaintiff and her husband on or about the first of each month and then actually collect the premiums at some later date.' When the application was signed on November 3, 1971, 'certain portions (of it) were blank.' At that time it was agreed by plaintiff's husband and the agent that the policy 'would become effective immediately upon approval by the (company) and that (Dubois) would, as usual, credit the premium and collect for same at a later date.' While Dubois was at the Muckelvaney home on December 10 to collect on another policy, he told plaintiff 'that the new policy on her husband had been issued and it was effective and that he (Dubois) would credit her account and collect for the premium in January, 1972.' On December 13, 1971, Dubois told plaintiff that the policy was not effective because the premium had not been paid. On information and belief, the policy in question was issued prior to December 1, 1971, and defendant's denial of coverage constitutes a breach of contract.

'Count Two'

After incorporating the allegations of 'count one' by reference, it is alleged that 'the acts of (Dubois) were done with the intent to defraud and deceive the plaintiff and said acts accompanied the aforesaid breach of contract and thereby constituted a breach of contract with fraudulent intent, all to the general damage and detriment of the plaintiff.'

The demurrer was on the ground that it appears upon the face of the complaint, including the incorporated...