Riley v. Life & Casualty Ins. Co. of Tennessee

• Decision Date: 21 July 1937
• Docket Number: 14518.
• Citation: 192 S.E. 394,184 S.C. 383
• Parties: RILEY v. LIFE & CASUALTY INS. CO. OF TENNESSEE.
• Court: South Carolina Supreme Court

192 S.E. 394

184 S.C. 383

RILEY v. LIFE & CASUALTY INS. CO. OF TENNESSEE.

No. 14518.

Supreme Court of South Carolina

July 21, 1937

Appeal from Florence County Court; R. W. Sharkey, County Judge.

Action by Robert S. Riley against Life & Casualty Insurance Company of Tennessee.Judgment for plaintiff, and defendant appeals.

Affirmed.

C. T McDonald, of Florence, and Sidney F. Keeble, of Nashville Tenn., for appellant.

McEachin & Townsend, of Florence, for respondent.

BAKER Justice.

On October 10, 1932, appellant issued its contract or policy of insurance to respondent, whereby it promised and agreed to pay to the beneficiary therein named, upon due proof of the death of the insured, the sum of $155.

This form of policy was known as an industrial policy or industrial insurance.The premium on this policy was 25 cents weekly, in advance, due and payable on Monday of each week.

The policy contained the following provision with reference to "payment of premiums":

"* * * All premiums are payable at the Home Office of the Company, but may be paid to an authorized representative of the Company; provided that such payment, to be binding on the Company, must be entered at the time in the Premium Receipt Book provided by the Company for entry of premiums payable on this policy.If for any reason the premium be not called for when due, it shall be the duty of the policyholder to bring or send said premium to the Home Office of the Company or to one of its District Offices."

There was a "grace period" of four calendar weeks.

At the time of delivery of the policy appellant was furnished with a premium receipt book in which was written the number of the policy, the name of the insured, and the amount of the premium.In bold type on this receipt book there was printed the following:

"Policy holders must immediately notify this Branch Office, or the Home Office, of change of address.

Premiums are due each Monday, in advance.If the agent does not collect weekly, send your premiums to the Branch Office or to the Home Office in Nashville, Tenn. * * *"

An agent of the appellant went to the home of respondent every week for the purpose of collecting the weekly premium, and all premiums were paid, as appears from the receipt book from October 3, 1932, to and inclusive of July 15, 1935.The policy being dated October 10, 1932, premiums actually paid covered a period to July 22, 1932.On August 26, 1935, or for the week of August 26, 1935, appellant lapsed the policy for the nonpayment of premiums.

On November 20, 1936, respondent brought an action against appellant, claiming actual and punitive damages in the sum of $3,000, for the alleged fraudulent cancellation of the policy hereinbefore described.

It is alleged in the complaint that appellant's agent had always assured respondent that he could depend absolutely upon collection at his home; "that suddenly and without warning of any sort and in furtherance of a fraudulent scheme and design to lapse and cancel the said policy of insurance, the defendant's agent ceased to call at the plaintiff's home and failed to call at the plaintiff's home for four weeks; that immediately upon the passage of four weeks the defendant declared the said policy lapsed and canceled the plaintiff's policy of insurance and thereafter refused to accept the premium in arrears or to renew the said policy of insurance."It is then alleged that respondent is nearly fifty-nine years of age, and at the time of the lapse and fraudulent cancellation of the policy, respondent was obviously failing in health and had since suffered a severe and disabling illness and was then uninsurable.It is further alleged, in varied form, that the foregoing actions were part of a fraudulent scheme and design to lapse and cancel respondent's policy of insurance; that the conduct of appellant was willful, wanton, and fraudulent, and a deliberate scheme and design to deprive respondent of a valuable policy of disability and life insurance.

The answer of the appellant was a general denial, admitting, however, the issuing of the policy, the subject of the controversy, the payment of premiums thereon until about July 22, 1935, and then alleged that the cancellation of the policy was due to the failure and refusal of respondent to pay further premiums.

Upon a trial of the case, when respondent rested his case, appellant moved for a nonsuit upon the ground that the testimony was not susceptible of any inference other than that the policy was lapsed because of nonpayment of premiums.This motion was refused.After all the testimony was in appellant...