Opinion
12645
April 23, 1929.
Before P.D. BARRON, Special Judge, Spartanburg, April, 1928. Reversed and complaint dismissed.
Action commenced in a Court of Magistrate by Sarah Foster against the North Carolina Mutual Life Insurance Company. Judgment for plaintiff was affirmed by the Court of Common Pleas, and defendant appeals.
The order of the Special Judge and appellant's exceptions follow:
ORDER"On October 6, 1927, the plaintiff brought suit against the defendant in the Court of Hon. A.R. Merchant, Magistrate, in and for the City of Spartanburg, S.C. for the sum of $90. The suit was based upon an insurance contract covering the life and health of one John Martin, the plaintiff being the beneficiary; the insured was insane over a period of seven months, and the plaintiff brought this suit and recovered the full amount sued for. The defendant has appealed to this Court from the judgment rendered.
"The original policy was never introduced, although an alleged copy was produced by the defendant. This alleged copy provided, inter alia, that sick benefits were payable to the insured, while death benefits were payable to the beneficiary. The only real question involved, therefore, is whether this suit should have been instituted by the insured or by the beneficiary.
"The uncontradicted testimony is to the effect that the agent of the insurance company, after considerable persuasion, induced the plaintiff to take out a policy covering the life and health of the said John Martin. The plaintiff is an old negro woman — ignorant, illiterate, unable to read. She agreed to pay all premiums, and the only reasonable inference from the testimony, which I have reviewed carefully, is that she expected to be paid all benefits accruing under the policy. Relying upon the representations of the agent, and the mutual understanding that she was to be paid all benefits accruing under the policy, she paid the premiums over a period of more than ten years. When the insured got sick, she asked the company for claim blanks, which were furnished. She endeavored to have these properly filled out, but, due to lack of co-operation, was unable to do so. All during this time the company, knowing that she was claiming the benefits, continued to collect the premiums, nor did they in any way disclaim liability to her. They even endeavored to compromise the claim with her for a lesser amount than called for in the policy. The plaintiff refused to accept the amount offered and brought suit.
"The only defense set up by the testimony of the defendant is the fact that the claims were not properly signed by the doctors treating the insured. The plaintiff, according to the testimony, did everything in her power to meet this requirement, and I so hold. In regard to the real reason why the claims were not paid to the plaintiff we find this:
"`Q. You offered to pay one? A. Yes, sir.
"`Q. If she had presented 100 claims you would have paid them? A. Yes, sir.
"`Q. You are now willing to pay weekly benefits? A. Yes, sir; and any other she presents.'
"I am convinced from the foregoing testimony, taken in connection with the other facts and evidence adduced, that both plaintiff and defendant considered the plaintiff the beneficiary of both sick and death benefits. All of the exceptions have been carefully considered by me, and I am convinced that the Magistrate was right in his findings and his judgment as rendered, and that the exceptions should be overruled. It is therefore ordered that the aforesaid judgment be, and the same is, confirmed and made the judgment of this Court; plaintiff to have leave to enter judgment forthwith."
EXCEPTIONS"Exception 1. His Honor erred in finding and holding as a fact that John Martin was insane over a period of seven months, there being no testimony to support the said findings. On the contrary, it appeared as an uncontroverted fact that the health of John Martin, the insured, was impaired at the most for a period of two months, and that, if the appellant can be held liable in any amount in no event can it be held for more than $24.
"Exception 2. His Honor erred in holding that the policy provided inter alia that sick benefits were payable to the insured while death benefits were payable to the beneficiary; it being respectfully submitted that the contract between the parties in writing solely provided for sick benefits to be payable to the insured only.
"Exception 3. His Honor erred in holding that there was any mutual understanding that Sarah Foster was to receive all of the benefits under the policy evidently basing said holding `upon the representation of the agent.' There being no allegation of fraud, and no proof thereof, and no allegation of misrepresentation, and no proof thereof, and the policy being in writing, there was nothing in the record upon which to base a finding that there was a `mutual understanding that she was to be paid all benefits accruing under the policy.'
"Exception 4. His Honor erred in holding: `When the insured got sick she asked the company for claim blanks which were furnished. She endeavored to have these filled out but due to lack of co-operation, was unable to do so. All during this time, the company, knowing that she was claiming the benefits, continued to collect the premiums nor did they in any way disclaim liability to her.' There being absolutely no evidence upon which to sustain such a finding and holding, but, on the contrary, the evidence showed there was never a lack of co-operation upon the part of the appellant, that it was never made known to the appellant that she individually and as beneficiary was claiming the right to the sick benefits when the written contract specifically provided that only the insured was entitled thereto, and there being no evidence of waiver on the part of the company or any authority to an agent to waive the written provisions of a policy contract, and there being no evidence of estoppel, his Honor was in error in so holding.
"Exception 5. His Honor erred in holding that the appellant attempted to compromise for a lesser amount than that called for in the policy; the conclusion being totally unsupported by any testimony, but on the contrary it was shown that only one claim signed by the insured and certified to by a physician had been submitted, and that for the benefit of John Martin, the insured, the sum of $3 was tendered.
"Exception 6. His Honor erred in holding that the only defense set up by testimony was that the claims were not properly signed by the doctors treating the insured. The contract between the parties that, as a condition precedent that before the company would be required to pay any sick benefit to John Martin, the fact that he was suffering from a disease must first be attested by attending physician, and that the insured must submit satisfactory proof of continued disability as set out in Paragraph 4 of conditions and agreements of the policy, which, in addition to the above, provided and required that the insured furnish a certificate each week during his sickness or otherwise satisfy the company of his continued sickness; and further, as provided in Paragraph 6 of the conditions and agreements of the policy contract, which provides `the insured will not be entitled under this policy in case of disability unless prevented from following his or her usual occupation and confined to bed or house and then, except in case of permanent disability, payments will not be made for more than 20 weeks in any one year'; there being no testimony in this case that the insured was confined to bed or house, or that he had a permanent disability, and his Honor erred in so ruling and holding.
"Exception 7. His Honor erred in finding and holding, `I am convinced from the foregoing testimony taken into consideration with the other facts and evidence adduced, that both plaintiff and defendant considered the plaintiff the beneficiary of both sick and death benefits"; there being absolutely no testimony upon which to base such a finding, and his Honor erred in so holding.
"Exception 8. His Honor erred in not sustaining exception first to the holding and findings of the Magistrate, and he should have held that the defendant was not indebted to the plaintiff in any amount.
"Exception 9. His Honor erred in not sustaining exception second, taken from the Magistrate's findings, and he should have held that the Magistrate erred in refusing the motion for a nonsuit and directed a verdict; it being respectfully submitted that the policy contract showed that the plaintiff was not the proper party to bring the action, if a cause of action existed, for under the policy she was not the party in interest, she being the beneficiary, and only the insured could bring the action for weekly benefits.
"Exception 10. His Honor erred in not sustaining third to the grounds of appeal to the Magistrate's holding; the undisputed evidence being that the insured was ill for only two months, in no event entitled to more than $24, and under all of the evidence the insured was precluded from recovering for more than 20 weeks in any one year.
"Exception 11. His Honor erred in not sustaining exception fourth in the appeal from the Magistrate, for the reason that the undisputed testimony was that only one claim for one week, signed by the insured and certified to by a physician, was ever presented to the appellant, and that this under the conditions and agreements of Paragraph 4 of the policy is a condition precedent."
Mr. A.C. Platt, for appellant, cites: Every action must be prosecuted in name of real party in interest: Sec. 354, Code Proc.; 6 S.C. 184; 48 S.C. 588; 109 S.C. 233.
Messrs. Thompson McConnell, for respondent, cite: Where suit brought on insurance policy and same defended on its merits, the question of proof of loss or death is waived by company: 14 R.C.L., 1349; 55 S.C. 589; 115 S.C. 53. As to proper plaintiff in action on policy: 41 A.S.R., 355; 108 U.S. 498.
April 23, 1929. The opinion of the Court was delivered by
For a statement of this case we quote the following from the agreed statement contained in the transcript of record:
"This action was begun by the Plaintiff against the Defendant in the Court of Magistrate and involved the sum of Ninety Dollars. On or about the 7th day of February, 1916, the Defendant, North Carolina Mutual Life Insurance Company, issued its policy of insurance covering the life and health of John Martin, who at the time was staying with plaintiff, Sarah Foster. That the policy provided for a weekly payment of premiums of fifteen cents and provided for Three Dollars per week sick benefit, and in case of death to pay to the beneficiary the sum of Forty-five Dollars; Sarah Foster being named in the policy as the beneficiary. * * *
"The Magistrate gave judgment against the appellant, who thereupon within due and proper time appealed to the Court of Common Pleas of Spartanburg County; upon hearing the appeal the Magistrate's findings were affirmed by the Honorable P.D. Barron, presiding as Special Judge. Judgment was entered, and from this judgment due and legal notice was served of intention to appeal to this Court, and the appellant does now appeal and asks a reversal of the said judgment.
"Briefly it is contended by the appellant and was contended before the inferior Courts that if the defendant was liable for anything on account of the sickness of the insured, John Martin, the same was due to John Martin and not to Sarah Foster the plaintiff herein; and that any claim paid by the appellant to Sarah Foster or any judgment had in her favor and paid by this appellant would not preclude John Martin from bringing an action against this appellant and recovering a judgment against it, provided the same was supported by law and fact."
A judgment obtained in a Magistrate's Court, confirmed by the Circuit Judge, as in the case at bar, will not be disturbed by this Court, unless there is no evidence to support the same; but, where there is a total lack of evidence, and the judgment is clearly erroneous, it should be set aside by this Court. After a careful examination of the record, this is our opinion as to the judgment obtained in the case at bar.
The suit was an action against the defendant under the sick benefit provision of the policy in question for the sum of $90, and judgment was awarded for the full amount sued for. The amount stipulated in the policy to be paid as a sick benefit is $3 per week, not to exceed 20 weeks in any one year. Therefore under no view of the case could the defendant be held liable for more than $60.
The policy further provides that, in order for the defendant to be liable under the sick benefit provision, the insured must be prevented "from following his or her usual occupation and confined to bed or house." According to the testimony of the insured, he was actually confined in the hospital, the place he had been sent, only two months. The remainder of the time he was at the hospital he was not actually "confined to bed or house," but worked some. Therefore according to the testimony of the insured, and there was no testimony to controvert his statement, two months is the greatest length of time that could be charged up against the defendant, amounting to only $24, for which the defendant could be held, if it be granted that the defendant is liable.
The policy further provides that, in order to collect under the sick benefit provision, application for benefits must be submitted to the home office or nearest office of the company, and the application blanks must be filled by the attending physician of the insured, and sick benefits will be allowed only in case of satisfactory proof of continued disability. This was not done except as to one week, and the defendant offered to pay the insured for this.
But the most serious obstacle that the respondent is confronted with is that there is no provision in the policy for the payment of money to her for sick benefits. The policy provides for the payment unto the plaintiff the sum of $45 in case of the death of the insured, but it is stipulated in the policy that the money for sick benefit be paid to the insured. It is not contended that the insured is dead, but that he has been sick. Neither is it contended that the insured has made an assignment of his rights under the sick benefit provision to the plaintiff. Therefore the plaintiff cannot maintain this action. His Honor, Special Judge Barron, as set forth in his order, finds as a fact that the plaintiff paid all the premiums on the policy, and that there was a mutual understanding between the parties that the plaintiff was to be entitled to all money under the sick benefit provision as well as for the death of the insured.
The evidence is conclusive that the plaintiff paid all of the premiums on the policy, but we fail to find any evidence of an agreement that the plaintiff was to be paid the money for which the defendant might be liable under the sick benefit provision of the policy, or any evidence of a mutual understanding to that effect. The policy is clear as to who is entitled to receive the money, and under our view of the case the plaintiff has no standing in Court.
The appellants' exceptions are therefore sustained, and it is the judgment of this Court that the judgment below be reversed and the complaint dismissed.
MR. CHIEF JUSTICE WATTS concurs.
We concur in the result upon the ground that the sick benefits were payable to the insured and not to the plaintiff, who was the beneficiary only in the event of the death of the insured. We do not think that the rights of the insured, who is living, should be determined in this action to which he is not a party.
MESSRS. JUSTICES BLEASE and STABLER concur.