Wilkie v. Philadelphia Life Ins. Co, 14677.

• Decision Date: 02 May 1938
• Docket Number: No. 14677.,14677.
• Parties: WILKIE et al. v. PHILADELPHIA LIFE INS. CO. et al.
• Court: South Carolina Supreme Court

197 S.E. 375

WILKIE et al.
v.
PHILADELPHIA LIFE INS. CO. et al.

No. 14677.

Supreme Court of South Carolina.

May 2, 1938.

On Rehearing June 3, 1938.

[197 S.E. 376]

Appeal from Common Pleas Circuit Court of Richland County; Wm. H. Grim-ball, Judge.

Action by Mamie Wilkie and others against the Philadelphia Life Insurance Company and Barbara H. O. Griffin to re-recover on a life policy issued by the first-named defendant. From a judgment favorable to plaintiffs, the last-named defendant appeals.

Reversed and remanded, with instructions.

The Master's report is as follows:

1. Pursuant to an order of reference granted by Hon. C. J. Ramage, Presiding Judge of the Fifth Judicial Circuit, dated 27th day of February, 1937, referring the above entitled cause to the Master for the purposes set forth in said order, I have held references herein, attended by the attorneys of record, took the testimony and other evidence offered and therefrom find and conclude as hereinafter set forth.

2. I find that under date the 10th day of November, 1923, the defendant, Philadelphia Life Insurance Company, in consideration of the payment of the premiums Stipulated therein issued its certain policy of insurance Number 73779 upon the life of Eulela H. Otis, then a resident of the City of Columbia, Richland County, South Carolina, and did thereby in consideration of the payment of the premiums agreed to be paid insure the life of the said Eulela H. Otis in the principal sum of $3,000.00, payable upon due proof of the death of the said Eulela H. Otis to her executors, administrators or assigns.

3. I further find that the right was reserved to the insured to change the beneficiary therein in accordance with the following policy provisions: "The insured may, while this policy is in force and unassigned, change the beneficiary. Written request must be made and the change will take effect when endorsement is made by the Com-

[197 S.E. 377]

pany upon the policy. The right is reserved to the insured, without the consent of the beneficiary, to receive every benefit, exercise every right and enjoy every privilege conferred upon the insured by this policy."

4. I further find that by instrument in writing, bearing date the 13th day of May, 1925, and attached to said policy, the Company and the insured entered into a special agreement for settlement at maturity and change of beneficiary by which the net sum of insurance with interest at 3¹/4%, compounded annually, shall be payable to Barbara H. Otis, daughter of the insured, in equal monthly installments of $30.00, the first installment to become due and payable upon receipt by the Company of due proofs of death of the insured.

5. I further find that at Philadelphia, Pa, the Home Office of the Company, the Company under date May 25, 1925, duly endorsed upon said policy of insurance the change of beneficiary from the estate of the insured to the defendant, Barbara H. Otis, as follows:

"At insured's request, the amount due at the death of insured, shall be payable not to the beneficiary hereinbefore designated but to Barbara H. Otis, daughter, in the manner and proportions, at and for the times, and upon the conditions specified in the special agreement for settlement at maturity, executed by the Company and the insured in duplicate originals, one of which is attached to this policy.

"Philadelphia, May 25, 1925.

"Ernest M. Blehl,

"Actuary."

6. I further find that under date the 3rd day of April, 1936, the insured wrote the Company that she intended to change the beneficiary in said policy to her four sisters, Mamie Wilkie, Electra Kimbrough, Sallie H. Smith and Ella H. Jepson, the plaintiffs in this action, with the request that the change of beneficiary become effective immediately, which letter was received by the Company, at its Home Office in Philadelphia on April 6th, 1936. In the meantime, to wit: April 5th, 1936, the insured was admitted to the Columbia Hospital, Columbia, South Carolina, and on the morning of April 6th, 1936, underwent surgical operation; that by letter dated April 6th, 1936, the Company acknowledged the insured's letter and enclosed change of beneficiary form for her execution and return to the Company with the policy for endorsement thereon, which letter was delivered to the insured at the hospital on April 8th, 1936. The insured executed the form on April 8th, and retained the same in her possession until April 11th, at which time the insured had one of the attending nurses post the same in the Columbia Post Office, addressed to the Company. By letter dated April 14th, the Company acknowledged receipt of the form for change of beneficiary duly executed, and again requested that the insured forward the policy for endorsement, which letter was delivered to the insured at the hospital on April 16th.

7. I further find that during the times above mentioned the policy of insurance was in the insured's lock box in the vault of South Carolina National Bank, Columbia. I further find that on April 3, 1936, the insured delivered the key to her lock box to her attorney for the purpose of transacting certain business not involved in this suit, and that the attorney delivered the key to the insured in person on April 16th.

8. I further find that the insured underwent another operation on April 18th, from which she failed to recover and died on April 20th, without having forwarded the policy to the Company for the purpose of effecting the change of beneficiary, and further that said policy was in full force and effect at the time of her death. I further find that the insured was physically unable to leave the hospital, go to the bank, obtain the policy of insurance and forward same to the Company. I further find that up to and including the day before her death, the insured was surrounded by all...