Winchester v. United Ins. Co., 17298
| Court | United States State Supreme Court of South Carolina |
| Writing for the Court | MOSS; STUKES |
| Citation | 98 S.E.2d 530,231 S.C. 288 |
| Parties | Henry B. WINCHESTER, Respondent, v. UNITED INSURANCE COMPANY, Appellant. |
| Docket Number | No. 17298,17298 |
| Decision Date | 30 May 1957 |
Page 530
v.
UNITED INSURANCE COMPANY, Appellant.
Page 531
[231 S.C. 289] Carlisle, Brown & Carlisle, Spartanburg, for appellant.
David N. Wilburn, Jr., Mike S. Jolly, Long & Long, Union, for respondent.
MOSS, Justice.
This is a consolidated appeal from an order in two cases, identically captioned, each originally seeking to recover actual and punitive damages. The appeal is from an order of the Judge of the Civil Court of Union County, South Carolina, overruling the motion of appellant to consolidate the two cases and to strike certain allegations from the two complaints.
Each complaint alleges that the respondent purchased a policy of insurance from Capital Life Insurance Company, dated March 1, 1954, differently numbered, one paying surgical and accidental death benefits, and the other covering hospitalization and paying a death benefit. Both of [231 S.C. 290] said policies were noncancellable, except for non-payment of premiums or for disability commencing before the date and delivery of said policy. The complaints alleged that the respondent suffered injury to his leg and foot, and that thereafter the appellant, United Insurance Company, having purchased the insurance business of Capital Life Insurance Company and assumed all liability on policies then in force, fraudulently refused to accept premiums tendered by the respondent, thereby depriving the respondent of his non-cancellable insurance policies. It is further alleged that as a result of the fraudulent, wrongful, malicious and willful conduct that the respondent has been injured and damaged.
The appellant made a timely motion to consolidate the two cases, together with a motion to strike certain portions of each of the complaints.
The motions to consolidate and to strike were heard by County Judge Sam E. Barron, and on August 9, 1956 he filed an order overruling all motions. This appeal followed.
The first complaint has to do with Policy No. 10494, which provides for accident and health benefits, an accidental death benefit and also a schedule of payments for surgery. The second complaint has to do with Policy No. 432219, and it is alleged that it is a life and health policy, purporting to pay to the insured a per day allowance for illness or accident necessitating hospitalization, as well as a death benefit to the insured's wife.
It appears from the records of this court that after the County Judge had overruled the motions to consolidate and strike, heretofore referred to, that the appellant moved before the County Court to require the respondent to elect as to whether he would go to trial in contract or in tort. It also appears that on Policy No. 10494, the respondent elected to proceed in contract, and on Policy No. 432219 elected to proceed in tort. It appears also that from these records the appellant, after respondent had elected to proceed [231 S.C. 291] in contract insofar as Policy No. 10494 was concerned, made a
Page 532
motion to strike from the complaint all allegations appropriate to a cause of action in tort. Agreeable with this motion the respondent did strike all allegations of said complaint which had been made irrelevant and redundant by his election to proceed in contract. An amended complaint conformable to this was prepared and served.The appellant is before this court upon a number of exceptions. This appeal may be disposed of by a determination of two questions. (1) Did the trial Judge err in refusing to consolidate the two actions? (2) Did the trial Judge properly overrule the motion of appellant to strike certain matter from the complaints, on the ground that the same is irrelevant and redundant?
In the case of Pelzer Mfg. Co. v. Sun Fire Office, 36 S.C. 213, 15 S.E. 562, 579, the following rule was announced:
'It is necessary, therefore, to inquire whether there was any error in refusing the motion to consolidate. It has long been settled, in this state at least, that a motion to consolidate is...
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State v. Quattlebaum, 25051.
...decision was controlled by an error of law and was therefore an abuse of the trial court's discretion. See Winchester v. United Ins. Co., 231 S.C. 288, 98 S.E.2d 530 (1957) ("abuse of discretion" means the trial judge committed an error of law in the The State argues any error was harmless ......
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Blackmon v. United Ins. Co., 17467
...of such a motion is not appealable. Sparks v. D. M. Dew & Sons, Inc., 230 S.C. 507, 96 S.E.2d 488; Winchester v. United Insurance Co., 231 S.C. 288, 98 S.E.2d Affirmed. STUKES, C. J., and TAYLOR, OXNER and MOSS, JJ., concur. ...
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Powell v. Powell, 17297
...Of course, such adjudication is not final in the face of changed circumstances which may be made the ground of future application to the [231 S.C. 288] court for modification of the judgment. Machado v. Machado, 220 S.C. 90, 66 S.E.2d 629. Furthermore, respondent may presently apply to the ......
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Winchester v. United Ins. Co., 17322
...benefit. 99 S.E.2d 34. We held that there was no error in refusing the motion to consolidate. Winchester v. United Insurance Co., S.C., 98 S.E.2d 530. There are numerous questions raised by the exceptions but we need only consider (1) whether the Court erred in refusing appellant's motion f......
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State v. Quattlebaum, 25051.
...decision was controlled by an error of law and was therefore an abuse of the trial court's discretion. See Winchester v. United Ins. Co., 231 S.C. 288, 98 S.E.2d 530 (1957) ("abuse of discretion" means the trial judge committed an error of law in the The State argues any error was harmless ......
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Blackmon v. United Ins. Co., 17467
...of such a motion is not appealable. Sparks v. D. M. Dew & Sons, Inc., 230 S.C. 507, 96 S.E.2d 488; Winchester v. United Insurance Co., 231 S.C. 288, 98 S.E.2d Affirmed. STUKES, C. J., and TAYLOR, OXNER and MOSS, JJ., concur. ...
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Powell v. Powell, 17297
...Of course, such adjudication is not final in the face of changed circumstances which may be made the ground of future application to the [231 S.C. 288] court for modification of the judgment. Machado v. Machado, 220 S.C. 90, 66 S.E.2d 629. Furthermore, respondent may presently apply to the ......
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Winchester v. United Ins. Co., 17322
...benefit. 99 S.E.2d 34. We held that there was no error in refusing the motion to consolidate. Winchester v. United Insurance Co., S.C., 98 S.E.2d 530. There are numerous questions raised by the exceptions but we need only consider (1) whether the Court erred in refusing appellant's motion f......