Opinion
14004
February 13, 1935.
Before RICE, J., Richland, May, 1934. Affirmed.
Action by Margaret L. Walker, by her guardian ad litem, L.E. Walker, against the Life Insurance Company of Virginia. Judgment for plaintiff, and defendant appeals.
The answer, the Court's charge as to actual damages, and Exceptions Nos. 4 and 5, directed to be reported, are as follows:
ANSWERThe defendant above named, by its attorneys expressly reserving its right to have the motion filed simultaneously herewith heard and determined, answering the complaint herein, alleges:
FOR A FIRST DEFENSE(1) That it admits the allegations contained in Paragraphs 1, 2, and 3 of said complaint.
(2) That it denies each and every other allegation in said complaint contained.
FOR A SECOND DEFENSEFor a second defense, and in further answer to said complaint, this defendant alleges:
(1) That heretofore, on or about the 15th day of May, 1925, written application was made for insurance on the life of Margaret Louise Walker, assumably the plaintiff herein on the ten-year payment plan in consideration of the payment of a weekly premium of 20 cents during the lifetime of said insured and the term of said insurance; that pursuant to said application this defendant issued its policy of insurance No. 4515822 on the life of the said Margaret Louise Walker on the ten-year payment plan, and the said policy was issued, delivered, and accepted by the insured, subject in all respects to the terms, conditions, and provisions thereof.
(2) That the said policy of insurance provided that, in the event the weekly premium therein provided for was not paid when due, or within the grace period allowed, the said policy should immediately lapse and become null, void, and of no effect.
(3) That the weekly premium of 20 cents becoming due on February 14, 1927, was not paid when due, and the said policy in accordance with its expressed provisions became lapsed and of no effect, and thereafter the same was revived on May 2, 1927, by the payment of the dues then in arrears.
(4) That the policy again lapsed for nonpayment of the premium becoming due on May 7, 1928, and was thereafter revived on August 20, 1928, by the execution and delivery of a lien agreement; that the said policy again lapsed for nonpayment of the weekly premiums becoming due on December 3, 1928, and was thereafter revived on February 4, 1929, by the execution and delivery of a lien agreement.
(5) That the premium becoming due on January 21, 1929, was not paid when due, and the said policy became lapsed, and, inasmuch as the same was not revived or reinstated in accordance with the provisions of said policy, on March 4, 1929, every insurance benefit created under said policy ceased and determined and the said policy is now, and has been since March 4, 1929, null, void, and of no effect, except for the amount of paid-up insurance available thereunder, approximately $35.00.
(6) In further answer to the said complaint, this defendant specifically denies that the plaintiff has made application for the revival or reinstatement of said policy since March 4, 1929, the date of final lapse, and specifically denies that said policy or the receipt book issued in connection therewith was delivered to this defendant with the request to or for the purpose of reviving or reinstating the same.
Wherefore, defendant, having fully answered, prays that the complaint be dismissed, with costs.
CHARGE AS TO ACTUAL DAMAGESNow, if this policy had gone through for ten years, with the premiums paid up, the full amount of paid-up insurance, gentlemen, would have been $300.00. They would have been entitled to a paid-up policy — not the money, you understand, at the end of ten years, not the money of $300.00, but a paid-up policy, and that means that the policy was good and no more premiums would have to be paid on it and it held good until the death of the insured. Now, if she paid the premiums for nearly four years or over three years — almost four years — you heard the statement as to when the payments ceased, the question is, isn't there something valuable in this policy which she is entitled to? Now, in my judgment, gentlemen, she would be entitled to a verdict at your hands, under those conditions, for the proportionate amount of that $300.00, for she had paid for that — the premiums had been paid. It is true that she claims she was prevented from going on with the payments by lapse of the policy, or rather, as she claims, by their taking the policy away. It is true also that the ten years have not yet expired, but she had paid in premiums, if she had paid the four years, say there would have been six years still to pay premiums, and at the end of that time she would have been entitled to a paid-up policy for $300.00, which would have been at the rate of, say, $60.00 or $30.00 a year, and, if it had been four years, she would have been entitled, it seems to me, and I am going to charge you that. If it had been four years, she would have been entitled to two-fifths of that amount, or, say, $120.00 of the $300.00 policy, which she would have been entitled to at the end of the ten-year period, if she had paid that proportionate amount, and that is the whole thing — it depends entirely upon this as to whether or not she is entitled to anything. If they lapsed it, then she would be entitled to this proportionate amount of $300.00, and she would be entitled to a verdict at your hands.
EXCEPTIONS NOS. 4 AND 54. Because his Honor, the presiding Judge, erred in charging the jury that the measure of actual damages to which the plaintiff was entitled is such proportion of the policy as the number of years premiums were paid thereunder bears to the paid-up value of the policy at the expiration of the premium paying period, or $120.00; the error being that the measure of damages recoverable would be the amount of premiums paid thereon, with interest. If the contract had been unlawfully breached or the amount of paid-up insurance accruing thereunder as determined by the tables included in said policy.
5. Because his Honor, the presiding Judge, erred in charging the jury as follows: "Now, if she paid the premiums for nearly four years or over three years — almost four years — you heard the statement as to when the premiums ceased, the question is, isn't there something valuable in this policy which she is entitled to? Now, in my judgment, gentlemen, she would be entitled to a verdict at your hands under these conditions for the proportionate amount of $300.00, for she had paid for that — the premiums had been paid"; the error being that such instructions amounted to a charge on the facts, in violation of Section 26, Article 5 of the State Constitution, and was highly prejudicial to the rights of the defendant, in that the language, in substance, directed the jury to return a verdict for the plaintiff for the amount of actual damages stated.
Messrs. Thomas, Lumpkin Cain, for appellant, cite: Breach of contract: 169 S.C. 540; 169 S.E., 430; 144 S.C. 448; 142 S.E., 648; 173 S.C. 131; 175 S.E., 73; 168 S.C. 178; 167 S.E., 232; 172 S.C. 250; 173 S.E., 801; 173 S.C. 139; 175 S.E., 76; 135 S.C. 48; 133 S.E., 227; 170 S.C. 19; 169 S.E., 673. Punitive damages: 173 S.C. 448; 176 S.E., 340; 70 S.C. 108; 49 S.E., 232; 3 Ann. Cas., 407; 166 S.C. 454; 165 S.E., 203; 84 A.L.R., 1336; 167 S.C. 434; 166 S.E., 502; 87 S.C. 331; 69 S.E., 660; 124 S.C. 8; 117 S.E., 305.
Messrs. E.J. Best and Cooper Maher, for respondents, cite: As to fraud in breach of contract: 162 S.C. 303; 160 S.E., 721; 107 S.E., 267; 92 S.C. 385; 81 S.E., 5; 120 S.C. 96; 229 P., 548; 256 S.W. 965; 12 R.C.L., 229. Punitive damages: 70 S.C. 108; 3 Ann. Cas., 407; 135 S.C. 48; 159 S.E., 923; 151 Va., 706; 144 S.E., 635; 127 Va., 5; 102 S.E., 569; 167 S.E., 647. Abuse of discretion: 155 S.C. 356; 152 S.E., 646; 81 S.C. 522; 62 S.E., 849; 145 S.C. 196; 143 S.E., 31; 157 S.C. 320; 154 S.E., 217; 161 S.C. 297; 159 S.E., 625; 168 S.C. 459; 167 S.E., 665; 171 S.E., 604.
February 13, 1935.
The opinion of the Court was delivered by
This opinion must be taken in connection with the opinion in the case of Sally Medlin v. Life Insurance Co. of Virginia (S.C.), 178 S.E., 615, which was heard at the same time as the present case by the order of former Chief Justice Blease, whose retirement from the bench by resignation was so universally regretted both by bench and bar.
It is alleged in the complaint in this case that plaintiff received a policy from defendant in 1925 and that said policy continued of force until some time in 1929, when defendant and its agent took the said policy of insurance and together with the receipt book under the pretext or guise of having the same revived, but after repeated demands the defendant company and its agents have refused to return the same policy or receipt book to the plaintiff or her agent, but have retained the same in the custody and possession of the said defendant and its agent, and that, at the time the said policy of insurance was taken by the defendant and its agent, it was in full force and effect and needed no revival; that the acts and conduct of the defendant company, and its agent as above set forth, were fraudulent, intentional, willful, and unlawful to the damage of the plaintiff in the sum of $3,000.00. The answer and Exceptions 4 and 5 will be printed in the report of the case and need not be set out here.
Mrs. L.E. Walker testified in substance: I took a life insurance policy on my daughter, Louise Walker, she was then three days old; it was a growing policy, a ten-year policy of 20 cents a month running up to something over $300.00 at the end of the ten-year period, to be paid in full then; took out the policy and paid the premiums through the Chester, S.C. office; carried policy a little over three years; it got three weeks in arrears and I wanted to pay one week on it and the agent asked me to let him take it and have it revived. I let him have the policy to revive it, and we never got it back. I thought he would advise me the best thing to do; I did not want it to get in the arrears and he was to bring it back; he was the agent of the Life Insurance Company of Virginia. I never got the policy back. I made demand in the Chester office for the policy and also at the Columbia office. They took the receipt book about three months later; they took the policy in February, 1929, and the receipt book the following June. The receipt book was a small book with about five leaves; Mr. Harris, an agent of the company, came and asked for the receipt book, and we gave him the receipt book and the little slips. He said he was bringing them to Columbia to get the policy numbers so they could get duplicates of the policies they had misplaced; agent told me that he would have the policies revived and promised to have them back in two weeks. I went to the office in Chester and he gave us the numbers and said he would look up the policies and mail them to us in the next few days. I have never been able to get the policies; the number is 4,515,822. It was three weeks in arrears and we had four weeks of grace. I was still entitled to another week of grace when the policy was taken up; the agent got the receipt book while I was at Red Bank; my mother-in-law sent the agent to me.
L.E. Walker: Witness swore that he saw the agent who took up the policies at Great Falls, and he told me that he would send the policies to Red Bank. I saw him the same date I was moving. We moved away from Great Falls some time in April, 1929, going to Red Bank.
Mr. R.H. Orr, for defendant, swore: Admits getting the policy to have the same revived after it had lapsed; it was revived on a lien note; it was seven weeks in arrears, and the company loaned them on this policy; signed a lien agreement, and the indebtedness stands against the policy and is paid when they have a loss under the policy. When the policy came back, Mr. Walker was not there at Great Falls. They (policies) came back two weeks after they were sent off; they were revived on February 4; we attempted to deliver but could not find them in Great Falls; the policy lapsed in four weeks on March 4, 1929; Mrs. Walker was not living in the house till April.
Even a casual reading of the testimony will show that there is a sharp conflict, and it makes a jury question.
It was a question for the jury whether or not the defendant got hold of the policy and receipts and fraudulently kept them in order that the policy might lapse. These were matters for the jury to pass on, and we find no error in his Honor's failure to grant nonsuit, direct a verdict, or to order a new trial. These exceptions are dismissed.
We cite the following cases: Wilkes v. Carolina Life Ins. Co., 166 S.C. 475, 165 S.E., 188; McLoud v. Metropolitan Life Ins. Co., 167 S.C. 309, 166 S.E., 343; Derrick v. N.C. Mutual Life Ins. Co., 167 S.C. 434, 166 S.E., 502; Sutton v. Continental Cas. Co., 168 S.C. 372, 167 S.E., 647; Hampton v. Supreme Lodge, 161 S.C. 540, 159 S.E., 923.
Under the cases cited which are in addition to the Bradley case, 170 S.C. 509, 171 S.E., 243, the testimony shows it was not error to leave the matter to the jury.
The other exceptions relate to alleged errors in the Judge's charge. We ask the reporter to set out what was said as to actual damages, leaving out that part about punitive damages. We find no error when all the charge is taken together. The matter was clearly and fairly submitted to the jury, and we see no error in what his Honor did. His construction of the policy was fair, and defendant could not complain, as the way was open to request further instruction, which was not done.
Judgment below is hereby affirmed.
MESSRS. JUSTICES STABLER, CARTER and BONHAM concur.