Wright v. New England Mut. Life Ins. Co. of Boston, Mass.

• Decision Date: 10 March 1932
• Docket Number: 13365.
• Citation: 163 S.E. 133,165 S.C. 190
• Parties: WRIGHT v. NEW ENGLAND MUT. LIFE INS. CO. OF BOSTON, MASS.
• Court: South Carolina Supreme Court

163 S.E. 133

165 S.C. 190

WRIGHT v. NEW ENGLAND MUT. LIFE INS. CO. OF BOSTON, MASS.

No. 13365.

Supreme Court of South Carolina

March 10, 1932

Appeal from Common Pleas Circuit Court of Union County; S.W. G Shipp, Judge.

Action by Mrs. Corrie Elizabeth Wright against the New England Mutual Life Insurance Company of Boston, Mass. Verdict was rendered for plaintiff. From an order granting a new trial plaintiff appeals.

Order reversed, and cause remanded for entry of judgment on verdict.

Sawyer & Sawyer, of Union, for appellant.

Hughes & Russell, of Union, for respondent.

G. B GREENE, Circuit Judge.

The complaint in this action was evidently modeled after the complaint in the case of Williams v. Philadelphia Life Insurance Company, 105 S.C. 305, 89 S.E. 675, in which case this court held that the complaint contained allegations appropriate to two causes of action, one arising ex contractu, and the other ex delicto. Within due time after the service of the summons and complaint herein, the defendant gave notice of a motion to require plaintiff to elect between the two alleged causes of action. This motion was heard by his honor, Judge T. J. Mauldin, who passed the following order:

"This is a Motion heard before me this day, upon due notice to require the plaintiff to elect between the two alleged Causes of Action, one ex contractu and the other ex delicto, alleged to be blended and mingled in one cause of action.

"After hearing argument on behalf of the Motion it is my construction of the complaint that there is but one cause of action alleged, that is on Contract, which is alleged to have been entered into, to-wit, a policy of Life Insurance, alleged to have been duly issued and not actually delivered to the assured by the alleged negligence of the local agent of the defendant.

" The Motion is therefore, refused."

No appeal was taken from Judge Mauldin's order.

The allegations of the complaint appropriate to an action ex contractu are as follows: That on the 30th day of May, 1929, one Bert D. Wright, of the town of Johnston, Edgefield county, S. C., at the solicitation of one P. B. Yarborough, an agent of defendant, residing at Greenwood, S. C., made written application to defendant for a policy of "Ordinary Life Insurance" in the sum of $1,000, wherein his wife, the plaintiff herein, was to be named as beneficiary; that on the -- day of June, 1929, the defendant issued the policy of insurance as applied for, and forwarded same to its said agent for delivery to plaintiff; that on the 29th day of June, 1929, the said agent wrote the said Bert D. Wright as follows: "I am very glad to inform you that our Co. has issued you a policy exactly as applied for. I will either bring or mail it to you next week"; that the said Bert D. Wright was prepared to pay the initial premium on said insurance whenever same should be called for by defendant's agent; that the said Bert D. Wright died suddenly at his home on the 4th day of July, 1929.

By its answer defendant set up as a defense to plaintiff's cause of action on contract the following: That the said Bert D. Wright made application for insurance as alleged in the complaint, and that by the terms and provisions of the said application the applicant enjoyed the option of prepaying the premium on said insurance, thereby causing the insurance to become of force immediately upon its issuance, irrespective of subsequent delivery, or of delaying payment of the premium until delivery of the policy applied for, in which event the insurance would not be in force until the first premium was paid while the applicant was in good health; that the said Bert D. Wright, in exercising his option, chose to delay payment of the premium until delivery with its consequent effect upon his rights under the proposed policy; that no policy of insurance issued by defendant in compliance with said application was ever delivered to the said Bert D. Wright, no premium was paid, and no insurance was ever of force between the parties.

The case came on for trial at the September, 1930, term of court for Union county, before his honor, S.W. G. Shipp, Presiding Judge, and a jury, and resulted in a verdict for plaintiff in the sum of $1,056.81. Defendant gave notice of a motion for a new trial. Judge Shipp granted said motion by the following order:

"This was a suit on behalf of the plaintiff against the defendant for damages for failure to deliver a policy of insurance. The Jury rendered a verdict in favor of the plaintiff for One Thousand Fifty-six and 81/100 ($1,056.81) Dollars. The defendant makes a motion for a new trial principally upon the ground that no completed contract was shown by the testimony in this case. Judge Mauldin, who presided at the February 26, 1930 Term of the Court, passed an order in which he held on a motion to require the plaintiff to elect between two alleged causes of action, one ex contractu and the other ex delicto, alleged to be blended and mingled in one cause of action; that under his construction of the complaint there was but one cause of action alleged, and that is on contract; to-wit: A policy of life insurance alleged to have been duly issued and not actually delivered to the assured by the alleged negligence of the local agent of the defendant.

"After a very careful consideration of the matter, I am unable to differentiate this case from the case of Wood v. Southeastern Life Insurance Company, 107 S.C. 536, 93 S.E. 197; and Welch v. Life Insurance Company of Virginia, 124 S.C. 492, 117 S.E. 720. Under these cases, it is held by the South Carolina Supreme Court that where the application for the policy and the policy itself contains a provision that the insurance shall not take effect until the policy is delivered and a first premium paid, no action can be maintained on the policy where neither the premium has been paid nor the policy delivered. The facts in the case at Bar are exactly parallel with the two cases cited. This being my view, I am compelled to grant the defendant a new trial in this case, And it is so ordered."

From the foregoing order of Judge Shipp, plaintiff appeals.

The question presented by the appeal for the determination of this court is whether there was error on the part of the circuit judge in setting aside the verdict of the jury and granting a new trial upon the ground that there was no delivery of the policy of insurance applied for, no payment of the initial premium on said insurance, and therefore no completed contract between the parties upon which plaintiff could maintain her action.

Briefly stated, the facts of the case are as follows: On the 20th day of May, 1929, at the solicitation of P. B. Yarborough, agent for defendant, one Bert D. Wright, of the town of Johnston, Edgefield county, made application to defendant for a policy of ordinary life insurance in the sum of $1,000, said insurance to be payable at his death to his wife, Corrie Elizabeth Wright, the plaintiff herein. The said application contained the following provision: "It is hereby Agreed that a copy of this Application shall become a part of any Policy issued hereon; that acceptance of any such Policy shall constitute ratification of any and all changes noted by the company under 'Additions and Amendments', and that the Insurance applied for shall not take effect...