187 S.E. 369 | S.C. | 1936
July 22, 1936. This action, one in which damages are sought for the claimed fraudulent breach of an insurance contract, was begun on May 10, 1935. It was alleged, among other things, that the defendant, Pilot Life Insurance Company, issued to the plaintiff, W.B. King, in February, 1926, its certain policy, whereby it agreed to pay him, according to the terms of the contract, monthly indemnity for disability caused by accident or disease; that in December, 1928, while the policy was in full force and effect, the insured became permanently and totally disabled, and has been so ever since; that the company paid him disability benefits for the months of January, February, and March, 1929, at the rate of $100.00 per month; that it then stopped such payments, and in August, 1929, through false and fraudulent representations of its agents, induced the insured, for the sum of $400.00, to surrender the policy and to execute a release of the company from any further liability under the contract.
The defendant denied by its answer the allegations of fraud or that the company had breached the contract of insurance in any way whatsoever, and pleaded the release as a full and complete discharge from all claims. About August 21, 1935, some months after the action was begun and before a trial was had, the plaintiff tendered the defendant the amount paid the insured by the company as consideration *240 for the release, but such tender was refused. The complaint was then amended by alleging these facts, which the defendant admitted to be true.
On the first trial of the case, in October, 1935, the jury failed to agree; on the second, in the following December, plaintiff was given a verdict for $3,000.00, and from judgment entered thereon the defendant appealed.
Several questions are raised by the exceptions, but under our view of the case it will be necessary to consider only the matter of the Court's refusal to direct a verdict for the defendant. The motion was made on two grounds, the first of which was as follows: "Because there was no tender of the amount paid for the release before the case was brought, although the plaintiff and his attorney knew of the release, and, therefore, that they are not in a position to recover in the face of the release."
The appellant contends that the general rule laid down in our cases, that it is necessary, before the commencement of an action, to pay back or to offer to pay back the consideration paid for the release, applies under the facts of this case, and that the trial Judge, therefore, should have directed a verdict on this ground.
In Levister v. Railway Company,
See, also, Riggs v. Home Mut. Fire Protection Association,
The question, of course, whether the rule applies in a given case depends upon the facts of such case. In McKittrickv. Greenville Traction Company,
In Harrison v. Southern Railway Company,
Brown v. Walker Lumber Co.,
In the case at bar it is not contended that the plaintiff did not know, before the action was brought, of the alleged fraud of the defendant in procuring the release. The fraudulent *243
representations claimed to have been made by the company's agents in connection with the matter were set out in detail in the original complaint. The execution of the release, and the receipt by plaintiff of the consideration named, were also alleged. But counsel says he thought that the company had paid the benefits for only three months, namely, January, February, and March, 1929, and that the amount of $400.00 paid on August 24, 1929, as consideration for the release, was justly due the insured at that time under the policy. This suggested reason for the failure to make tender at the proper time is unsatisfactory. We do not think it may soundly be held that the rule should not here be made to apply because the plaintiff claims to have forgotten a certain fact peculiarly within his knowledge, namely, the correct amount, $600.00, paid him by the company as monthly benefits under the insurance contract. If the insured, because of lapse of time, were uncertain about a matter regarded as so important, his counsel no doubt could have correctly informed himself thereabouts through other sources. That he did so may be surmised as a reason for the tender that was made before the case was tried in October, 1935. In any event, we think, under the admitted facts, that the tender as made was not timely, and that there was a waiver by the plaintiff of any right he may have had to avoid the contract for fraud.Brown v. Walker Lumber Co., supra.
Mitchell v. Mutual Benefit Health Accident Association,
In view of the conclusion reached, consideration of the second ground of the motion for a directed verdict becomes unnecessary.
The judgment of the Circuit Court is reversed, and the case remanded, with instructions to enter judgment for the defendant under Rule 27 of this Court.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM, BAKER and FISHBURNE concur. *244