Tolbert v. Southern Mut. Life Ins. Co.

• Decision Date: 27 March 1935
• Docket Number: 14030.
• Parties: TOLBERT v. SOUTHERN MUT. LIFE INS. CO. et al.
• Court: South Carolina Supreme Court

179 S.E. 308

175 S.C. 338

TOLBERT v. SOUTHERN MUT. LIFE INS. CO. et al.

No. 14030.

Supreme Court of South Carolina

March 27, 1935

Appeal from Common Pleas Circuit Court of Newberry County; W. H Townsend, Judge.

Action by Belle Tolbert against the Southern Mutual Life insurance Company and another. From a judgment for plaintiff as against the named defendant, the named defendant appeals.

Affirmed.

Steve C. Griffith, of Newberry, for appellant.

Alan Johnstone, of Newberry, for respondent.

STABLER Chief Justice.

We gather the following undisputed facts from the record for appeal: On August 1, 1929, the Pioneer insurance Company issued to the defendant, the Improved Order of Redmen, a fraternal organization, of which one John Tolbert was a member, a group policy, and thereby insured such members of the Redmen who elected in writing to contribute to the cost of the insurance. In 1931 Tolbert obtained in this manner $1,000 on his life; the plaintiff being named as the beneficiary in the certificate issued him by the insurer. In February, 1932, the defendant Southern Mutual Life Insurance Company assumed and guaranteed the payment of the group policy and the certificates issued under it. The liability of the company was conditioned upon the payment of the premiums as provided in the policy, which allowed a grace period of 31 days after the due date, and upon the insured member remaining in good standing in the Order of Redmen. In September, 1932, Tolbert died; proofs of his death were filed with the company as required; but payment of the insurance was refused. This action was then brought to enforce collection.

The defendants made separate answers. The Improved Order of Redmen denied all liability, alleging that the taking of the insurance was optional with the members of the order, and that the policy in question was an independent contract between the insured and the insurer. The defendant company alleged that any liability under the policy was its sole liability, and that it had refused payment because the insurance had lapsed for the nonpayment of premiums, and for the further reason that the insured was not in good standing in the order at the time of his death.

On trial of the case the court granted a nonsuit as to the defendant Order of Redmen, but overruled the company's motions for a nonsuit and for a directed verdict. The jury found for the plaintiff, and, from judgment entered on the verdict, this appeal is taken.

The appellant, by its exceptions, charges the trial judge with error in the following particulars: (1) In the admission of certain testimony; (2) in refusing defendant's motions for a nonsuit and for a directed verdict; and (3) in his instructions to the jury.

As to the first contention, it appears that the premium on the policy in question was $1 per month, payable in advance, a grace period of 31 days, as we have indicated, being allowed. It also appears that the company authorized a member of the lodge to collect for it the premiums when due. On June 29 1932, a man named Le Mons, who was then the agent of the company for that purpose, and who also collected the lodge dues, wrote the insured the following letter: "Please send me by post office money order $2.00 for insurance and $1.25 for Redmen dues. Please mail at once as time is due for month's ins. Thanks." Tolbert complied with this request on the following day by remitting the $3.25. While Le Mons admitted having duly received this money, he claimed that the $2 for insurance covered the premiums for the months of May and June, and was intended as payment by Tolbert of money which he (the agent) had personally advanced for the payment of the premiums for those two months. Nothing of this, however, is indicated in the notice. In July, 1932, J. C. Ammons succeeded Le Mons as the collector of the lodge dues, and also at the same time became the authorized representative of the insurance company for the collection of premiums on certificates held by the members of the order.

In this situation, in August, 1932, R. N. Tolbert, a son of the insured, went to Union, as stated by him, for the purpose of paying any amount that might be owing by his father as insurance premiums and lodge dues. He testified that, upon arriving there, he inquired for...