Shuler v. Equitable Life Assur. Soc. of U.S.
| Decision Date | 05 October 1937 |
| Docket Number | 14535. |
| Citation | 193 S.E. 46,184 S.C. 485 |
| Parties | SHULER v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Barnwell County; J. Henry Johnson, Judge.
Action by Mrs. Nealie Kizer Shuler against the Equitable Life Assurance Society of the United States. Judgment for defendant, and plaintiff appeals.
Affirmed.
Thos M. Boulware, of Barnwell, for appellant.
Thomas Lumpkin & Cain, of Columbia, and Blatt & Fales, of Barnwell for respondent.
The appellant is suing for the recovery of damages in the sum of $3,000, claimed to have been suffered by reason of an alleged fraudulent breach of an insurance contract issued by the respondent to William F. Shuler, her husband, on February 27 1919, in which the appellant was the named beneficiary. This appeal is prosecuted from an order of nonsuit, granted by the trial judge on motion of the defendant. An examination of the policy of insurance clearly establishes that the insured reserved the right to change the beneficiary in the manner therein described, and it is admitted that the insured was, at the time of the commencement of this action, and is now, alive. A preliminary statement of the testimony, which we must view in the light most favorable to the appellant, will give the necessary history of the transaction leading up to the institution of the action.
It appears that an annual premium became due under the policy on October 21, 1934, and the insured made application to the society for an increased loan in aid of settlement of the premium, but was advised that on account of the indebtedness then outstanding against the policy it would be necessary for him to pay $2.49 in cash to complete the payment. It further appears that on November 10, 1934, well within the grace period, the plaintiff gave to a soliciting agent of the society at Orangeburg, S. C., the necessary amount in cash, with the request that he transmit it to the office of the cashier. Later it developed that the agent neglected to send in the money within the grace period, which caused the cashier's office to advise the insured that the policy had become lapsed for nonpayment of premium, but that application for reinstatement would be considered. Thereafter, according to the insured's testimony, he went to see the agent and asked why he had not remitted the money given to him, within the required time, and that the agent replied that the matter could be satisfactorily adjusted, but that it would be necessary for him to sign an application for reinstatement, which was done.
The insured testified that he informed the agent that, on account of an illness previously suffered by him, he could not truthfully represent himself to be in good health, but signed the application at the insistence of the agent, who told him that if he had not been confined to bed his illness was immaterial. The society accepted the reinstatement.
During the summer of 1935 the insured became ill, suffering from duodenal ulcers, and thereafter submitted his claim for total and permanent disability benefits under the policy. Within a short time thereafter, he received a letter from the society notifying him that the reinstatement of the policy had been rescinded on account of the failure of the applicant to disclose his true condition of health in his application, and that it denied all liability thereunder. A similar letter was written to the plaintiff, as the beneficiary of the policy. It further develops in the testimony that, after the receipt of the letter of rescission, W. F. Shuler, the insured, instituted an action against the society for the recovery of damages on account of the alleged wrongful breach of those provisions of the policy wherein the society contracted to pay disability benefits, which breach was alleged to have been accompanied by a fraudulent intent and accomplished by a fraudulent act. The trial of this case resulted in a verdict in favor of the insured for the sum of $1,600, and the judgment entered thereon was duly paid and satisfied.
From this review of the testimony it appears that the respondent was without right to rescind the reinstatement of the policy.
By the insurance contract the respondent promised to pay to the beneficiary, subject to any loan or advance made by it, and subject to the general provisions of the policy, the sum of $2,000, upon receipt of due proof of the death of the insured, provided premiums had been duly paid, and provided the policy should then be in force, with the right reserved to the insured to change the beneficiary.
The following provision forms a part of the contract:
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