Prince v. State Mut. Life Ins. Co.

• Court: South Carolina Supreme Court
• Writing for the Court: POPE, C.J.
• Citation: Prince v. State Mut. Life Ins. Co., 77 S.C. 187, 57 S.E. 766 (S.C. 1907)
• Decision Date: 05 June 1907
• Parties: PRINCE v. STATE MUT. LIFE INS. CO.

57 S.E. 766

77 S.C. 187

PRINCE v. STATE MUT. LIFE INS. CO.

Supreme Court of South Carolina

June 5, 1907

Appeal from Common Pleas Circuit Court of Hampton County; Gage Judge.

Action by Albert I. Prince against the State Mutual Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed.

Dean & Dean and B. R. Hiers, for appellant. W. S. Smith and W. B. De Loach, for respondent.

POPE C.J.

This action was commenced in December, 1905, and was heard at the October-November, 1906, term of the court of common pleas for Hampton county. The plaintiff sought to recover damages for the alleged failure of the defendant to issue to him a 10-year policy of insurance on plaintiff's life. The allegations of the complaint are, in substance, as follows: That on the 5th day of May, 1905, in consideration of the sum of $15.43, the defendant agreed to execute and deliver to the plaintiff its policy of insurance upon his life in the sum of $1,000, and in case of plaintiff's death to be payable to his wife. That said policy was to mature in 10 years, and at the end of that time, plaintiff if living, would receive the sum of $1,000, and in case of his death the beneficiary would receive that amount; provided the premiums were paid as they became due. That plaintiff paid the first premium and received a receipt therefor, stood his physical examination, and, under the agreement above set forth, was accepted as an insurable risk by defendant. That although he has performed his part of the contract in full, defendant refused to issue said 10-year policy, but, instead, willfully and wantonly attempted to compel plaintiff to accept another policy of insurance by threatening plaintiff with imprisonment. The answer was a general denial. In rebuttal of plaintiff's testimony, defendant introduced in evidence the written application of plaintiff for a 20-year annuity in the State Mutual Life & Annuity Association of Rome, Ga. Judge Gage, the presiding judge, having refused to direct a verdict for defendant, the case went to the jury, and a verdict for $500 was found for plaintiff. The defendant appeals.

1. The first alleged error is the refusal of the court to direct a verdict for defendant, on the grounds: (1) That there was no evidence that Mr. McKee was the agent of defendant company; (2) that there was absolutely no element of damages shown. As to the first ground, we think the refusal of the presiding judge was proper. It is well settled that where there is any evidence at all it must go to the jury. E. D. Rushton testified: "Do you know who was the agent of the State Mutual Life Insurance Company of Rome, Ga., in Hampton county? Mr. McKee--J. W., or W. J. McKee--was the agent of the company. You had some dealings with the company? Yes, I have a policy in the company." On cross-examination testified: "From whom did you receive your information that Mr. McKee represented the State Mutual Life Insurance Company? Through Mr. McKee. In no other way? Yes, through policies I had to deliver for Mr. McKee direct from the house. You got all your information from Mr. McKee? I had communication with another agent. Who? W. G. Ruddell. Where is he? He was in Fairfax; I do not know where he is now. He is state manager for this same company." While it is true, mere declarations of a person are not proof of his agency, yet there is other evidence to warrant the question being submitted to the jury.

2. Nor are we prepared to say that in this case there were no actual damages. It is undisputed that plaintiff gave his note to the company, and that it is still an outstanding liability. True, plaintiff has not paid anything on the note, but the defendant refuses to give it up. In the application set out in the case, as in some applications, it was not agreed that the premium should be forfeited and go to pay the company for trouble and expense in issuing the policy if the applicant refused to accept the same when issued. It was therefore the duty of the defendant to surrender the note after the failure to complete the contract. This note was received as cash, and while outstanding it, as it were, reduced the plaintiff's credit to that extent. We think the circuit judge was correct in holding this to be some element of damage sufficient to take the case to the jury.

3. Assuming, but not holding, that McKee was the agent of the company, and having power to bind it by contract, we proceed to consider whether the application for insurance was a part of the contract of insurance and binding on the plaintiff. That the application is a part of the contract seems to be well settled by authority. Cooley, in his Briefs on the Law of Insurance (volume 1, p. 676), says: "For the general purposes of construction, an application will be considered a part of the contract, if it is referred to in the policy in such a way as to...