Ryan v. New England Mut. Life Ins. Co.

• Decision Date: 30 June 1921
• Docket Number: 10672.
• Citation: Ryan v. New England Mut. Life Ins. Co., 108 S.E. 182, 116 S.C. 469 (S.C. 1921)
• Parties: RYAN v. NEW ENGLAND MUT. LIFE INS. CO.
• Court: South Carolina Supreme Court

108 S.E. 182

116 S.C. 469

RYAN v. NEW ENGLAND MUT. LIFE INS. CO.

No. 10672.

Supreme Court of South Carolina

June 30, 1921

Appeal from Common Pleas Circuit Court of Sumter County; M. L Smith, Special Judge.

Action by Loretta M. Ryan against the New England Mutual Life Insurance Company. Verdict for plaintiff, and defendant appeals. Affirmed.

Cothran J., dissenting.

Lee & Moise, of Sumter, and Buist & Buist, of Charleston, for appellant.

John H Clifton, of Sumter, for respondent.

GARY C.J.

This is an action on a policy of life insurance, issued by the defendant, to Jno. B. Ryan, Jr., on the 26th of July, 1917, in the sum of $2,500, wherein his wife, the plaintiff, was named as the beneficiary.

The application of Jno. B. Ryan, Jr., for the insurance, contained these words:

"I further agree that said policy shall be void, if within five years from its date, I engage in military or naval service in time of war, without the written consent of the company previously obtained."

The supplemental application contains this provision:

"If within five years from the date of this policy the insured shall engage in any military or naval service in time of war, the liability of the company in event of the death of the insured while so engaged, or within six months thereafter, will be limited to the return of the premiums paid hereon, exclusive of any extra premium paid for military or naval service, less any indebtedness to the company hereon; unless before engaging in such service or within thirty-one days thereafter, or at the time of paying the first premium due hereon, if the insured shall be then so engaged, the insured shall pay to the company at its home office in Boston, Mass., such extra premium as may be required by the company, and in like manner shall pay annually thereafter on each anniversary of this policy or within thirty-one days thereafter, while the insured shall continue to be so engaged, such extra premium as may be required by the company."

The policy thus provides:

"This clause is by mutual agreement attached to said policy prior to its delivery, and is hereby expressly incorporated therein."

The plaintiff introduced in evidence the following letter:

"Greenville, S. C., Box 807, June 23, 1918.

Mr. Rogert J. Guinn, Atlanta, Ga.--Dear Sir: On May 15, 1918, I entered the service of the United States by becoming a member of the Fourth Officers' Training School at Camp Sevier. Will you advise me by return mail what effect this will have on my policy No. 337355, which was issued in July 1917.

If I am killed or die in the service, whether while in this country or abroad, can my beneficiary collect this policy?

Awaiting your reply before paying the premium due on July 26, 1918, I remain,

Yours very truly, J. B. Ryan, Jr."

"Box 807, Greenville, S. C.

Also the following:

"Atlanta, Ga., June 25, 1918.

Mr. John B. Ryan, Jr., Box 807, Greenville, S. C.--Dear Sir: Re: Policy No. 337355. We have your favor of the 23d and note that on May 15th you became a member of the Officers' Training School, and making inquiry concerning your policy. In reply beg to advise that in the event of your policy becoming a claim while you are in service, at home or abroad, the same is payable to your wife. But you will please be advised that when you receive your commission you will have to pay the extra war premium, which is $37.50 per thousand per year.

Trusting this is the information desired, we are

Yours truly, R. J. Guinn,

General Agent. H."

Also the following letter:

"June 30, 1918, Greenville, S. C., Box 807.

Mr. R. J. Guinn, Atlanta, Ga. Care of New England Mutual Life Insurance Co. Dear Sir: Replying to yours of June 25th, I am inclosing herewith check for $81.50 for premium on my policy No. 337355. Also am inclosing order for my share of surplus profit to become $26.00 paid-up insurance.

I understand from yours of the 25th, that until I go abroad there is no extra war premium due on my policy.

Yours very truly, J. B. Ryan, Jr.

Please send receipt to Box 807, Greenville, S. C."

John B. Ryan, Jr., was commissioned a second lieutenant of infantry on the 25th of August, 1918, and died on the 4th of October, 1918.

The following statement appears in the record:

Letter from Jno B. Ryan, Jr., to R. J. Guinn, dated June 30, 1918, offered in evidence. The defendant's attorney objects to the introduction of the letter, there being no proof that it was ever mailed or received by Mr. Guinn, and that a waiver of a condition in a policy of insurance could not be established by an alleged letter claimed to have been written and mailed without proof that the same was received by the company or some officer or agent of the company.

The plaintiff testifies on cross-examination by defendant's attorney, and also on direct examination by plaintiff's attorney, that she wrote the letter in question, mailed it at the main post office in Greenville, S. C., duly stamped and addressed to Mr. Robert J. Guinn, at Atlanta, Ga. "I knew the address of Mr. Guinn, and had received letters from him." Over defendant's attorney's objection letter introduced in evidence and marked Exhibit D. "In this letter that my husband dictated to me, in which it says, 'Check inclosed for $81.50,' the check was put in that letter, in the letter of June 30, 1918. We left Camp Sevier about July. I don't remember the exact date, and went to Camp Gorden at Atlanta, and was called back to Camp Wadsworth. While in camp I kept copies of the letters. I had a book with carbon copies, and I wrote them and made the carbon copies. I had no typewriter."

R. J. Guinn thus testified in behalf of the defendant:

"The premium due in July, 1918, was paid to me by check. I had no original letter inclosing the check. There was no such letter that I remember. Usually no letter accompanied the check. I am positive that no letter came with this remittance. If any letter did come, I am positive no notice was sent with the premium that Mr. Ryan was in the service. I am positive that no letter came other than this: 'Enclosed find check for premium.' Most of them just send check with no letter. * * * I attend to all the correspondence out of the ordinary; all letters from the policy holders that required an answer were answered by me personally, or I would give direction as to how to answer the same. * * * I have made search of all letters in our files and all copies of letters, and have not found the original letter from John B. Ryan, Jr., alleged to have been written on June 30, 1918."

Upon the close of the defendant's testimony, the defendant moved to strike the letter from the record, on the ground that it had been admitted in evidence by reason of the presumption that the letter having been mailed according to the plaintiff's testimony, it was presumed to have been received, but that, the defendant's testimony having conclusively shown that the letter had not been received, the presumption had been rebutted. His honor refused to strike the letter from the record.

At the close of all the testimony, the defendant's attorneys made a motion for the direction of a verdict, which was refused. The jury rendered a verdict in favor of the plaintiff for the amount claimed, and the defendant appealed upon exceptions, which will be reported.

The appellant's attorneys did not argue the exceptions separately, nor do we deem it necessary to consider them in detail.

There is no question, that the letter which Jno. B. Ryan, Jr., mailed to the defendant, inclosing the check for $81.50, in payment of the second premium, due on his policy of insurance, was delivered to the defendant. But the issue was whether the contents of the letter were correctly stated in the plaintiff's testimony. If so, they tended to show waiver on the part of the defendant, and the case was properly submitted to the jury.

Affirmed.

WATTS and FRASER, JJ., concur.

COTHRAN J. (dissenting).

The facts of this case are very clearly stated in the opinion of the Chief Justice.

In reference to the motion by the defendant to strike from the record the alleged letter from Ryan to Guinn, general agent of the defendant, dated June 30, 1918, the motion was properly refused. Mrs. Ryan testified that she personally mailed the original letter, of which that offered in evidence purported to be a copy, in the post office at Greenville, postage paid, containing check for $81.50. The presumption would arise that it was delivered in due course, and, coupled with the fact that the check was received and cashed, the burden of disproving receipt was upon the defendant. This raised an issue of fact which was properly submitted to the jury.

It was also a question of fact for their determination whether or not the purported copy truly represented the contents of the original letter. For the purpose of this appeal from the order refusing to direct a verdict for the defendant, I will assume that the letter of June 30th was received by the defendant, and that the copy in evidence is a correct one.

The question for determination is whether or not the conduct of the general agent in reference to this letter constituted such evidence of waiver or estoppel as required the submission of that issue to the jury.

To restate the facts bearing immediately upon this issue: The policy was issued July 26, 1917, and the initial premium of $81.50 was paid at that time. On May 15, 1918, the insured entered an officers' training school, I assume not having enlisted at that time, but in fact entering the military service. On June 23, 1918, he wrote the general agent, notifying him of that fact and submitting to him this question, the answer to which he desired...