Ray v. Pilgrim Health & Life Ins. Co.

• Decision Date: 30 May 1945
• Docket Number: 15738.
• Citation: 34 S.E.2d 218,206 S.C. 344
• Parties: RAY v. PILGRIM HEALTH & LIFE INS. CO.
• Court: South Carolina Supreme Court

34 S.E.2d 218

206 S.C. 344

RAY v. PILGRIM HEALTH & LIFE INS. CO.

No. 15738.

Supreme Court of South Carolina

May 30, 1945

Edgar A. Brown and James Julien Bush, both of Barnwell, for appellant.

Thomas H. Peeples, of Blackville, for respondent.

OXNER Justice.

Alma Ray, respondent, brought this action against Pilgrim Health and Life Insurance Company, appellant, to recover actual and punitive damages in the sum of $1000 alleged to have been sustained by reason of the fraudulent conversion by appellant of the sum of $5 which respondent paid to appellant to be credited on the premium of a life insurance policy for which she had applied. At the conclusion of the testimony, appellant made a motion for a directed verdict which was refused by the trial Judge and the case submitted to the jury, resulting in a verdict against appellant for $5 and interest as actual damages and $40 as punitive damages. The only question necessary for determination is whether the Court below erred in refusing to direct a verdict in favor of appellant as to punitive damages.

On April 19, 1944, respondent, a resident of Blackville, South Carolina, made a written application to appellant through its district agent for an ordinary life insurance policy in the sum of $1000, for which she agreed to pay an annual premium of $24.55. At the time of filing this application she paid $5 in cash which was to be credited on the premium, but the issuance of the policy was contingent on the payment of the balance of the premium and respondent's passing the necessary medical examination to be made by a physician at Blackville. Appellant offered testimony to the effect that the deposit above mentioned was required to defray the cost of the medical examination. According to respondent's testimony, she advised the district agent about a week after the application was made that she had decided not to take the policy, as she had all the insurance which she could carry and requested a return of the $5 which she had paid, to which the agent replied that he would refund this money on May 20 1944. Respondent never appeared for the medical examination. Respondent further testified that appellant made no effort to refund said amount until August 14th, when the local agent tendered to her appellant's check for $5 which she refused because, 'after I had to wait so long for my money, I didn't feel that they had treated me right.' On August 15, 1944, the same day this action was commenced, appellant mailed said check to respondent. She received it on August 16th but immediately returned it to appellant.

Appellant's district agent testified that after the application was made he did not again see respondent until the latter part of May, when he requested her to go ahead and take the medical examination so that the policy could be issued, to which she replied that she was planning a trip to New York and requested that the whole matter be held in abeyance until she advised him further; and that he next saw respondent the latter part of June, when she stated that she had decided not to take the policy and requested a return of the $5 payment, to which he replied that he would make application to the Company for a refund of said amount. This money had previously been forwarded to the home office of the Company in Augusta, Georgia. According to appellant's testimony, the check representing the refund was issued on August 7th and on August 9th tendered by its local agent to respondent, who declined to accept it.

The action is one for an alleged conversion, which has been defined as 'an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of the owner's rights.' Commercial Credit Co. v. Cook et al., 165 S.C. 387, 164 S.E. 17, 19; Neel v. Clark, 193 S.C. 412, 8 S.E.2d 740; Powell v. A. K. Brown Motor Co., 200 S.C. 75, 20 S.E.2d 636. 'Conversion may arise either by a wrongful taking of the chattel or by some other illegal assumption of ownership, by illegally using or misusing it, or by wrongful detention.' Young v. Corbitt Motor Truck Co., 148 S.C. 511, 146 S.E. 534, 542; Williams v. Haverty Furniture Co., 182 S.C. 100, 188 S.E. 512. It is 'a tort, a wrongful act, which in the nature of things cannot spring from the exercise of a legal right.' General Motors Acceptance Corporation v. Hanahan, 146 S.C. 257, 143 S.E. 820, 823.

While money may be the subject of conversion, Abrahams & Co. v Southwestern...