Page v. North Carolina Mut. Life Ins. Co.

• Decision Date: 25 July 1945
• Docket Number: 15758.
• Citation: 35 S.E.2d 716,207 S.C. 277
• Parties: PAGE v. NORTH CAROLINA MUT. LIFE INS. CO.
• Court: South Carolina Supreme Court

35 S.E.2d 716

207 S.C. 277

PAGE v. NORTH CAROLINA MUT. LIFE INS. CO.

No. 15758.

Supreme Court of South Carolina

July 25, 1945

McDonald & McGowan, of Florence, for appellant.

Hawkins & Bethea, of Dillon, and Willcox, Hardee, Houck &amp Wallace, of Florence, for respondent.

FISHBURNE, Justice.

The appeal is from an order of the Circuit Court disallowing an amendment to defendant's answer, and granting judgment upon the pleadings in favor of the plaintiff.

The action was brought in October, 1942, by the plaintiff, as beneficiary, under an insurance policy issued by the defendant on the life of Dorothy Lee Page, to recover the amount alleged to be due in the event the insured should die by accident. Liability was predicated upon the allegation that the insured met her death solely by accidental means directly and independently of other causes.

The answer, which was filed in due course, admitted the issuance and delivery of the policy, but denied that the insured died as the result of an accident. Elaborating upon the denial the defendant alleged that the insured was killed by one Rosa Lee Powers, in the State of North Carolina, and that as a result of such criminal and intentional homicide, Rosa Lee Powers entered a plea of manslaughter. It was alleged in other paragraphs of the answer that 'the insured came to her death as a result of a difficulty or intentional killing as aforesaid by or with one Rosa Lee Powers,' and not as the result of accident within the terms of the policy. Liability was, therefore, denied.

On January 31, 1945, plaintiff served upon the defendant notice of a motion for judgment upon the pleadings, which matter thereafter came up for a hearing before the Circuit Judge. During the course of the hearing, and after the Judge had indicated his disposition to grant the motion, the defendant asked leave to amend its answer so as to allege that the insured was the aggressor in the altercation which preceded and brought about her death; and that the insured knew or should have anticipated that the other person might kill her in the encounter, and for that reason the death of the insured was not accidental within the terms of the policy.

The Circuit Judge ruled that there was no motion before him, and no showing upon which he would be warranted in permitting an amendment to the answer. He called attention to the fact that the answer, which had been served two and one-half years before, raised only the question that the killing was not accidental because it was intentionally done by a third party; that depositions had been taken by defendant in March 1943, within a year after the service of the complaint eliciting information as to the circumstances of the killing, and that no motion to amend the answer had been made thereafter. The order was then passed, granting judgment upon the pleadings, and denying the amendment.

In granting judgment, the Court relied upon the case of Jennings v. Clover Leaf Life & Cas. Co., 146 S.C. 41, 143 S.E. 668, 670, in which the following principle is announced: '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.'

It will be observed that the exception mentioned in the foregoing rule is exactly what the defendant wished to allege in its answer by way of amendment, and which was refused by the Court.

A motion for judgment on the pleadings is in the nature of a general demurrer. It is appropriate, where the pleading is fatally deficient in substance, that is, where the complaint fails to state a good cause of action in favor of the plaintiff and against the defendant, or where the answer fails to state a defense sufficient in law to the cause of action alleged by the plaintiff, or fails to tender any issue of facts in the case. Being in the nature of a demurrer, a motion for judgment on the pleadings raises an issue of law only. 41 Am.Jur., Sec. 335, Page 520.

When a demurrer to a pleading is sustained, the trial court is vested with a sound discretion in respect to the determination of the question, whether it will allow the party to amend his pleading, and this discretion will not be disturbed unless erroneously exercised. Ordinarily, permission will be given to amend if the objection can be obviated. In such case, it is usual and entirely proper to sustain the demurrer with leave to amend. Blackwell v. First Nat. Bank of Columbia, 185 S.C. 427, 194 S.E. 339; Norris v. Brown, 154 S.C. 138, 151 S.E. 274.

It appears that the reasons assigned by the Court for overruling appellant's motion to amend, are somewhat involved. Among those stated, it is said that there was no motion before the Court to amend; and no showing upon which it would be warranted in permitting an amendment. Evidently the Court meant by this that there was no motion, because it was not made upon a four day notice, since the...