Wilson v. American Cas. Co., 18878
| Decision Date | 21 February 1969 |
| Docket Number | No. 18878,18878 |
| Citation | 166 S.E.2d 797,252 S.C. 393 |
| Court | South Carolina Supreme Court |
| Parties | Minnie S. WILSON, Respondent, v. AMERICAN CASUALTY COMPANY and Modern Homes Construction Company, of which American Casualty Company is, Appellant. |
Burroughs & Green, Conway, for appellant.
Winston W. Vaught, Conway, for respondent.
This is an action to recover payments allegedly due under a policy of insurance issued by defendant, American Casualty Company, to the plaintiff, under which defendant agreed to pay to the holder of a mortgage on plaintiff's home the monthly payments required under the mortgage, in the event plaintiff became totally disabled and for such period as disability continued. In addition, plaintiff seeks recovery of the expenses incurred by her as a result of a foreclosure action allegedly instituted because of a prior refusal of defendant to make the mortgage payments in accordance with the policy terms. There have been prior actions to recover under the policy and the complaint contained allegations of such fact. This appeal concerns the relevancy of the allegations, and proof admitted thereunder, concerning the prior actions between the parties and the expenses incurred in the foreclosure action.
Plaintiff became totally disabled in 1962 and this is the third action brought to require defendant to continue the mortgage payments as agreed under the policy. Plaintiff's claim of continued total disability has been rather consistently denied and contested by defendant without success. Paragraphs 6 through 9 of the complaint contained allegations with reference to these prior actions between the parties, including allegations that plaintiff was previously required to pay the expenses of a foreclosure action, including attorney's fees, because of a prior refusal of defendant to make the mortgage payments. It appears from these allegations that, after the original proof of disability, defendant made the mortgage payments through April 12, 1963. Thereafter defendant refused to make subsequent payments and the mortgage payments became in arrears, resulting in the institution of foreclosure proceedings. Plaintiff then began an action against the defendant, which resulted in the resumption of the mortgage payments by the defendant to April 12, 1964. After these payments by defendant, the foreclosure action was ended, upon the additional payment by plaintiff of the expenses of the action including attorney's fees to the mortgagee's attorney, presumably as required by the default provisions of the note and mortgage. Thereafter defendant again refused to make further payments, and plaintiff brought another action to require that the payments be made. That action resulted in judgment against defendant for the payments due through January 29, 1965. When defendant again refused to pay, this action was instituted to recover the amounts allegedly due since January 29, 1965, and also the expenses, including attorney's fees, incurred as a result of the institution of the above mentioned foreclosure action.
Defendant moved, before trial, to strike the foregoing allegations of paragraphs 6 through 9 of the complaint upon the ground that they were irrelevant, immaterial and prejudicial. The motion was refused and the case proceeded to trial during which evidence to sustain the foregoing...
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