*1 Burbage Life Standard v. Jeeeerson Syllabus C. and to driver, liquor him where to get directed and the appel- where County, it somewhere Newberry .carry the liquor. car and receive his meet the driver of lant would circum- case from evidence There was enough was stances, appellant to infer that facts and receiving that day purpose in Newberry County time car was from his that he knew where and liquor, officers time, car chased when the was by and There is a out, himself known. did not make hid and liquor, have received the that he would strong probability officers. frustrated - and think error made his exceptions, seeWe no conviction proper. overruled, affirmed.
All and judgment are exceptions and Brease, and Cothran, Stabler Messrs. Justices Purdy Acting concur. Mr. Associate Justice LIFE INS. CO. STANDARD ET AL. v. JEFFERSON BURBAGE E., 230) (136 S. por Presumption Check Insur- Arises
1. Evidence. — Note Received in Due Course Mailed Were ance Premium, Insurer, payment of insurance were and check in Mail. —If note op they arises that were company, presumption mailed to insurance of mail. by company received course Mailing por op op Note Insur- Check Insurance —Evidence Tending Presump- to Rebut ance with Circumstances Premium, Jury. relative to note por —Evidence op Held tion Receipt, premium, insurance being mailed to they tending presumption to rebut together circumstances mail, question for to present due course of held were received in jury. 1926. Affirmed. Moss, J., February,
Before Orangeburg, and others against Suit Lula Judgment plain- Insurance Company. Standard tiffs, and defendant-appeals.
Burbage Ins. Co. 209 Riee Term, 1926 Brooks, Bowman, Messrs. Parker & Smith John S. *2 for cite: appellant, Presumption letter mailed was receiv- ed is rebuttable: 49 R. A. 461. (N. S.), R. Giving worth- of 40'A. less check not does amount to R. payment: for 411; P„ 673; R., 721; 234 6 R., 298; 102 A. Ga. S. App., Ark., 162; A., 254; 147; 93 61 C. C. 42 A.,R. R. on Joyce 1144. Sec. Insurance, Cited to sustain motion new C., 70 77. S. trial: Policy lapses pay premium: failure E., 285; C., 125 131 405. S. S. Court to construe Duty of C., 125 285. Duty Written instruments in evidence: S. of insured under clause to ascertain disablement disability and so So., 275 519. insurer: notify cites: Martin,
Mr. C. respondent, Respondent en- B. C., 106 356. titled S. policy: disability benefits of Proof E., 49 6. ex loss Insurer waived S. parte: entirely of 409; C., C., 85 70 S. S. right proof disability: full of 295. Cash as premiums should policy applied of 32 C. 1308. J., insured to pay premiums: failure of Table issued insurer determine cash value at values of E., 432. "To” date: 91 term exclusion:. S. given of Dictionary. Anderson’s Raw Cash surrender value C., 101 S. cash lodn on policy: reduced automatically 267. letter mailed was not received raises Testimony C., 121 385. S. policy question Beneficiaries of of fact: E., 414; 430; C., 97 therein: 128 S. S. have vested rights C., woman 77 299. married S. policy benefit of Life Code, 1922, 4099. Duty in- Civ. Sec. dnd children: S., 297. 139 U. Fore- surer notióe to give of forfeiture: action pledgee: closure must be pledge affirmative E., 295. Respondent E., entitled to re- 639; 72 78 S. S. insured: debts insurer minus cover from face E., 82 S. 30, 1926. December delivered Mr. of the Court opinion Justice
Watts. Ins. Co. Liee v-
Concurring Opinion C. S. overruled, under the authority are All of exceptions Insurance Company, Cope Standard Life C., E., therein 532; and authorities S. cited, affirmed. and judgment and Mr. Act- StabeEr Messrs. Beease Justices ing Ramage concur. C. Associate J. Justice Mr. Cothran dissents. Justice Mr. concur opinion Mr. Stabler: Justice in this case should be Watts that judgment Justice affirmed, reasons therefor. briefly my state and will 9, 1906, the & Com- Security Annuity
On October the life of Miles insurance on E. issued a pany *3 $1,000.00, the children of Mims, in surviving the sum of wife, Mary, designated his by' being the insured 1912, 20, this con- On September as beneficiaries. defendant; and assumed by tract of insurance was insured, 1923, Mims, the died. Upon about December beneficia- to pay refusal thé insurance company case, amount of the ries, in this policy, the plaintiffs this suit was begun. the policy the defendant defense, alleged
Eor a the annual of the insured pay failure had lapsed and that October $44.94, premium made to loans been exhausted value of a verdict for The jury gave thereon. the insured plaintiffs $480.66. Court, error imputing to this
The defendant appeals ver- motion for a directed its in refusing the trial Judge, in several partic- jury in his charge dict and error named. ulars the annual discloses that record
An examination the insured had 9, 1923, and due October was make payment. which days of grace on the policy from the company had borrowed the insured value. Apparent- to its surrender almost cash equal amount an sum to necessary pay to raise the unable ly being Ins. Bife 20S]
and the interest loan, then due on the $72.56, total of 24, 1923, wrote the on October company inquiring whether it would him allow “to make a note for any part his him in payment.” October, sent 1923— whether before or after insured’s letter we are unable to say offer of settle following “proposed —the ment” :
Note for.................................. 82.08 $ Cash 32.33 .....................................
Total ................................. $114.41 5, 1923, On November wrote the insured a letter a note for inclosing $82.07, saying:
“If you will and return sign (note) with your canceled note-and will be sent you.” premium receipt
There was testimony behalf of the respondents tending to show that this offer of the settle- company’s “proposed ment” insured, was accepted by that, response thereto, insured, the note was executed and that the note, sum, check for signed duly required Mims, mailed to the company. Hessy son of the He testified positive point. that he was for his father in the matter and acting defendant, executed note and check were him to mailed *4 in a properly addressed of the envelope. Testimony appel- lant tended to that the re- show note and check were never by ceived the company.
Hessy also that the insured an Mims testified had account Eutawville, in the Bank of on which bank the check was $40; drawn of the about and two or three before days father, death of his the witness this drew out money, made the care arrangements with bank at that time to take of this check should same be for It is presented payment. that, cross-examination, Mims, true when testified Hessy the as to verbal with to care of the bank take arrangements check, the the trial remarked: Judge v,. Ins. Co. Standard Liee
Dissenting Opinion G. S. “I don’t think that is competent.” seems, as however, testimony regarded It that this allowed, in reply as the jury before being appellant cash- the bank of Mims to call as a witness to testimony Hinnant, no ier, testified that the insured had who E. J. time the check account Bank of Eutawville months pri- or for of six alleged given period thereto, from the nor bank and no was drawn or as testified check, of the made for the arrangements payment that, this testimony, under Mims. by Hessy other consideration, with along before them jury of such fact, arrangement issues question of the check. for the bank offer “pro Whether the insured accepted was, tO'him 1, 2 made the company settlement” posed of fact the jury. the testimony, question under to the insurance note company, If the were mailed show, the tended to respondents as were received they arises presumption In Hightower in due course of mail. Metropolitan Life The 378; E., C., testimony, Co., surance S. however, check were never of the appellant, circumstances, taken with other received company, trial prop to rebut such Judge tended presumption, jury. submitted erly question Court say whether It is within the province in a true or untrue. question-of case is testimony given a matter for the entirely jury. of witnesses is the credibility whole, taken as a does the trial when Judge charge error, prejudicial not disclose any complained appellant. Acting BeEasE, and Mr. Watts
Messrs. Justices Ramage, concur Associate Justice Action Coti-iran (dissenting). upon pol- Mr. Justice Mims, the life Miles $1,000, insurance for E. icyof *5 & on October Security Annuity issued Company Ins. Co. Biee v.. Standard 1906, 9, defendant, assumed Insurance on 1912 the bene- September Company, Bife ficiaries children being who plaintiffs, on December died
The defense that on lapsed 1923, by reason of the failure the insured to pay premium which was due that day.
fact is conceded that the insured did pay due, time that but in of the claim rebuttal of the insurance that occured, then bene- company lapse thereby ficiaries contend of counsel (substantially language for the : respondents) 1, 1923, That on
(1) insured submitted August proof of total and permanent insurance disability company, and asked for thereunder of money what was com- to him. ing That on or abount the last of 1st
(2) October or of No- vember, 1923, invitation of the insurance company, insured mailed to the insurance and note company insurance; sufficient to on notes and pay interest the check that was not on De- payment; presented 13, 1923, cember to the credit of the deposit bank, insured was from the withdrawn but that arrange- ments were made with the bank to the check when pay pre- sented. That there was a sufficient loan value said
(3) 1923; on October premium due loan pay by the for that requested insured refused purpose the insurance company. That the insurance “foreclosed never its
(4) his notes until pledge,” gave right pay death, the time of which the automatic extended kept force; insurance the death of the in- policy, by sured, claim; converted into death that the insurance became creditor, both with the funds debtor *6 Burbage v..
.214 Ins. Co. Liee Jeeeerson
Dissenting Opinion S. C. the $1,000, from *7 anjr medical of the adviser shall be to ex- allowed amine the person any alleged respect disability.” 1, will be noted that the insured in his letter of August ,
1923 was of his as to the case surrender value inquiring no claim policy; disability made to the benefits of the clause, and made no effort to with the conditions comply be made form to be submitted application upon that an com- company and examination made pany’s letter cannot con- physician. reply conditions, sidered as a waiver of these not at were they all the subject of the The insured made no correspondence. election as disability to the benefits for in the provided clause. table which awas shows that part 9, end of the 16th the cash year 1922) surrend (October 9,
er $488, of the 17th and at the end (October it on his 1923), The amount the insured due $530. notes, 1, sur at that time exceeded the cash 1923) (August 9, render had in value of October 1922 and if he ($488), sisted re at that time he have settlement should If ceived he had Oc insisted on nothing. upon settlement tober 1923 he would still been entitled to nothing, for—
The amount due his notes was.............. $529.85 And the 44.94 was ......................
$574.79 And the cash surrender 530.00 only........... value was
A 44.79 .......................... deficiency $
15—S. C. —138 Burbage Ins. Co. Opinion
Dissenting C. October, In As contention: apparently second October, had not after the paid, before the letter of the insured dated October settlement,” to the insured a “proposed submitted were willing accept which it they cash up insured for making $114.- $82.08 due, : then stated as follows 27.62 Interest on $ Loan.................... 44.94 Premium October 1923 ............ 41.85 Old lien note ...................... $114.41 82.08 Note .......................... $ 32.33 Cash .............................. $114.41 *8 statement, 24th, On after October evidently receiving the insured wrote as follows: to interest amounts
“Premium with loan on this policy statement, on the plus. it appears as (Just $44.94 $72.56. for any part me to make note Would allow $27.62.) you mail.” of this Please let me know return payment? On October 27th company replied: numbered “If sufficient value under above there is loan 2nd April me lien note maturing send policy kindly approved lien note.” to and outstanding make up $530, the 16th only The year loan value at the end loan the amount due notes. a few cents more than 5th, the wrote: On company November No. 5821 for “I herewith note under am inclosing for If return with check will you sign $32.34 $82.07. canceled statement), your of the October terms (the advises will be sent you. company premium receipt time.” at this that can be made this is best settlement 20th, the wrote: On November company to amounting “As have not paid your premium $72.- you Burbagd Co. Standard Bids y.. Jddddrson Term, 1926 6821-A, 9th, your due October under No. the re had to returned the 30 days’ to as ceipt grace company had expired.” reinstatement, a blank offer-
—inclosing application take a note after the insured to balance what ing paid he could. No to to these ány propositions appears reply made. Mims, a testified plaintiff Hessy son that about the last of or 1st November he mailed his father’s note for and check on the Bank $82.07 Eutawville in with company, compliance $32.34 October, 1923; made proposition death, December two before his days he drew father’s out all that bank, bank arranged to the check for should it pay I do presented. not think that the as obliged Court evidence testi- accept which the mony evidence shows to be untrue. overwhelming The note and check not to have been received appear by the and the company, the cashier of bank is effect that the insured did not have deposit bank his dollar for of six months single period prior death; his out, that no as testified was drawn Mims, death; Hessy days few before his father’s Mims had Hessy made no to meet the arrangement alleged check for $32.34.
As late as November notified 20th, the insured and interest had not been paid per *9 October Mims was the affairs proposition. Hessy managing father; for his he letter, must have known of no yet was made to it no claim and reply and that the note check had been forwarded “about last October or first November.” 18th, When December the com- he notified pany death, his father’s his claim was the disability under clause and no mention made of was the note check. But if such be as some evidence may considered fact that he had mailed the note check to the com- Lire; JIíRRErson v-. Opinion
Dissenting S. C. settlement, I not think do of the October pany acceptancé bound, in the absence of evidence that the would and that there was received that the been communication to credit of the insured appli cash in the bank sufficient letter, of the cable the check. From the terms company’s that transmission I it inferable legitimately think that intended; that, if the mail was of the note and check by at the received and was had been good but where time, have been would compliance complete; received, never was it never check was appears it cashed, that was no only and that there is not evidence that but, evidence contrary, at the good time, positive not, it it held that do not think that can justly was L., R. 60. C. insured with the complied proposition. a loan was request As to the third contention: not made October the insured until above, after due premium his letter that date quoted 9th, in default. The replied (through October if to take local the loan was sufficient up agent) note, might the insured lien outstanding therefore, lien be submitted forward a presumably 9, 1923, not to the company. really entitled having paid, previous loan value as of that date ($575), but year ($530). however, to the loan value that was entitled
Assuming, be reduced the out- $575, necessarily value was indebtedness: standing loan .................................
Policy $488.00 27.62 Interest ................................... 41.85 Note....................'.............. Old 44.94 Premium.................................. $602.41 lie which loan could There was therefore nothing based; fact, a deficiency $27.41. *10 Ins. table,
As to fourth contention: if the By had in- due October extended paid surance have for 16 would carried and 8 policy years months. contains this policy provision: indebtedness
“Any at the time existing against policy seettlement shall deducted from the cash any surrender n >nluesshall and the value other be diminshed policy, proportionately.” as-,
The cash surrender value at end of the 17th year, 9, 1923, due October had been suming premiums insured, The amount due would have been paid $530. only all accounts was cents. leaving upon insurance which it would have amount of extended days. about purchased negligible, 1-2/3 The letter of December the fifth contention: As to com- shows anxiety which will reported, no was taken. relieve the of which advantage pany it his lifetime the insured during it was not accepted by If status of the not have legal parties. could changed surely have course, that insured should paid is regrettable, 16 years his and apparently premiums it must be remembered them, the benefit lost have of insurance received benefit these he years that during available, if the had matured which would during period. time any 1923, after he had been too, that in August, It appears, testified, and, as his son a year, ill practically cancer die,” he aban- sure he was going felt pretty “we all then policy, writing all hope continuing doned value of the pol- surrender was the cash what supposed : icy here more. health, not be long will bad
“I am very you make Will any. work and cannot have no cash be the mail what will return let me know please I can so get my surrender balance policy, *11 220 Ins. Co. Opinion
Dissenting C.— I me, I can use some while live.” so coming what cash is Case between the analogy Cope can see no controlling cases Watts, the case bar. The cited Mr. Justice that a would in their facts comparison are so different very me clear It seems to little and of assistance. tedious a should directed verdict that motion the defendant’s least, At the should judgment the have been granted. error of trial upon reversed and a new ordered palpable in follows: jury Judge charging presiding lien loan and the in also a “There is provision to' them notice give 30 notice day’s required that * * * to be The loan a notice requires the forfeiture. forfeiture, sides must be governed and both sent must loan. notice They give the terms of the policy forfeiture.” in charge
The the above extracts from the first paragraph flat of the of the com- of the declaration was duty Judge cir- 30 forfeiture under all notice of a days’ pany give forfeiture The cumstances. defendant was insisting upon of the account of non-payment 9, 1923; of recovery by eliminated all charge possibility effort as there not defendant upon ground, show, of the defendant such notice. to> part defendant’s,
The second of the is modification paragraph fifth no reference at all to the which had charge request note, forfeiture for in had provided manifestly the loan reference to the non-pay- forfeiture reason ground ment of the pre- statement of premium. emphatic forfeiture,” ob- siding “They must notice of the Judge, give if the viously that even conveyed impression jury if had not been and even the son had paid mailed claim a. the note and check the defendant could not forfeiture view of their failure to notice give days’ it. well circum- have believed jury might view
stances he related above that the son stated falsely v. I. F. et al. O. O.
Kline check and have found for yet mailed the note plain- that the defendant had tiff not complied upon ground of notice so emphatically with the imposed obligation them. to have notice of Mr. escaped Justice of the son as to made having Stabler check, with the bank to honor the veibally arrangements funds, if out all after had drawn presented, Folio held the trial inadmissable. Judge *12 In 2 Ins. is said: Ed.) it Joyce (2d § such “Subject to as exist un- or exceptions qualifications der or some statutory under provisions provisions, notice, or unless there is waiver or estoppel, if there is an for forfeiture in case of express provision or non-payment before a day, sepcified and the time expires without or excuse for valid payment non-payment, absolutely becomes void policy thereupon at once without notice of or forfeiture on the any action part of the nor need a formal of for- company; declaration feiture for non-payment due, when be declared premium, when for forfeiture policy stipulates for such nor is it for the non-payment; necessary to make a declaration of forfeiture on its books.” Haggins Co., v. C., E., 216; S. S.
The policy sued provision: contains “In case default or payment any note therefor, this contract shall cease and determine.” KLINE INDEPENDENT ORDER OF ODD ET FELLOWS AL. E.,
(136 216) 1. Beneficial Associations —Drafts on Treasurer of Association Held Conformity not Issued in -witi-i Rule of Association not Binding Obligation. association, —Drafts on treasurer of beneficial drawn of board chairman of trustees and countersigned by self- styled superintendent of orphanage, purporting to be in salary superintendent, of former held binding to constitute hand and should have notes paid the balance to the beneficiaries. remitted 11, That letter of the insur- by 1923, December (5) forfeiture; ance to assert right lapseur waived the letter received that this insured December death; time before his that he had a reasonable days two it, the letter to act upon after the of within which receipt time he died. 1, 1923, in- to the first On As contention: August as sured wrote to insurance follows: health; “I will here am bad not be more. Will very long let me return mail will the cash you know what be please I what surrender value of so can balance of get my policy same, cash I can use live ? Please is me so while coming let you me hear from at once.” 6, 1923, as to that letter on August The company replied follows: the surren- your “We letter of 1st August requesting der is value of above Your in force your policy. policy and cannot be sur- your to October paid premiums there a loan rendered until that date. is Against your policy indebtedness, and a note for This plus, lien $39.48. $488 note, the interest on the will amount to lien $529 $530; be see you Your surrender date will SO' value the entire value indebtedness consumes your practically of your policy.” disa- in the policy relating permanent provisions is as follows: bility and per- total satisfactory receipt “Upon proof in full disability manent while insured shall have force premiums, in full force : Continue this policy following options (1) or, value; its face a paid-up nonparticipating endowment, in ten as an receive the payable face (2) installments, installment to paid first equal annual dis- total nd permanent immediately upon receipt proof Burbage Standard Biee Pall
Notes
[1926] If the insured live ability. should not to draw the ten an- installments, nual the remainder ben- will continued to the or commuted eficiary, in one sum. paid “Proof of total and disability of the insured permanent will be on forms required prescribed company,