37 S.C. 417 | S.C. | 1892
The opinion of the court was delivered by
On the 5th day of June, 1889, James M. Stepp applied to the defendant for a policy of insurance for $2,000, and, on the 10th day of June, 1889, a policy was issued to him, payable to the plaintiff. On the 2d day of April, 1890, James M. Stepp died. Upon application to the defendant for the blank forms upon which to make up proofs of loss, defendant declined to furnish such forms, and, in the letter, dated 17th April, 1890, gave as the reason therefor, that the policy in question had been cancelled by the defendant on 1st December, 1889, and it was unnecessary to forward proofs of loss. On the 4th day of February, 1891, an action was brought by the plaintiff in the Court of Common Pleas for Greenville County against the defendant, to recover the amount of the loss under said policy of insurance.
The defendant by answer admits the execution of the application for insurance, together with the execution of the note for the one year’s annual premium; that the policy was duly issued; that the copy thereof with the complaint is correct; that the receipt was given; that the note was received by defendant ; that the policy has not been paid; that notice was received of the death of the insured, and that defendant refused to forward blank forms for proof of loss; that the death loss has not been paid. But the answer denies all liability to pay the loss, and insists that the policy in question was cancelled
The cause came on to be heard before Judge Witherspoon and a jury at the July term, 1891, of the court at Greenville.
After plaintiff had closed, defendant moved for a non-suit, because the plaintiff had not introduced the policy of insurance ; the Circuit Judge allowed plaintiff to do so, and refused the motion. The defendant introduced testimony. The Circuit Judge withdrew the cause from the jury, deciding himself for the plaintiff. After judgment was entered, defendant appealed. While the grounds are numerous, yet, in order to be conscious of having considered every one of the many errors here presented, we will reproduce the same.
Exceptions to Rulings.—1. The presiding judge erred in refusing to grant a non-suit, because: a. The execution and delivery of the alleged receipt for premium note offered in evidence was not proved. b. The execution and delivery off the policy offered in evidence was not proved, c. There was no proof that the poliey had not been paid. d. The presiding judge permitted plaintiff’s attorneys to put the poliey in evidence, after plaintiff’s attorneys announced that they had closed, and after argument by defendant’s attorney for non-suit, and without proving the execution and genuineness of said policy, e. The presiding judge erred in ruling, that the fact that plaintiff held the policy, raised the presumption that the terms had been complied with.
2. The presiding judge erred in striking out the 7th, 9th, 11th, 12th, 18th, and last, 21st, direct interrogatories, and the answers responsive thereto, inasmuch as the evidence related to and explained why the policy had not taken effect, because of the failure of plaintiff to perform certain conditions precedent, to wit., the payment of certain dues and the note given for premium.
4. The presiding judge erred in refusing to permit the defendant to prove the insolvency of plaiutiff’s husband at the time of the execution of the note given for premium.
5. The presiding judge erred in permitting plaintiff to introduce evidence of a conversation with one Epps, and with one Martin, inasmuch as said parties were not privies to the contract of said defendant with said plaintiff.
6. The presiding judge erred in discharging the jury empanelled in the cause, because there was no consent of the several parties to the said action, as provided by law, to such discharge of the said jury.
7. The presiding judge erred in allowing plaintiff’s attorneys to formulate and write the decree in the causfej because by law the presiding judge is charged personally with the duty and responsibility of finding the conclusions of law and fact in the cause.
Exceptions to Decree.—1. The presiding judge erred in filing a general decree in the cause, inasmuch as the case was one for the recovery of money only, with issues of fact arising upon the pleadings, and there being no submission of the cause by the several parties to the action to the presiding judge, for his decision in writing, filed with the clerk, or orally, with entry of same in minutes of court, as required by law.
2. Because, even if the presiding judge had the power to file a general decree in the cause, the same is void and a nullity, inasmuch as: a. It is impossible to ascertain with certainty from the decree what are conclusions of fact and what are conclusions of law. b. Because the conclusions of fact and conclusions of law are not found at all. c. Because the conclusions of fact and conclusions of law are not found separately, as required by law.
3. The presiding judge erred in stating in the decree, that
4. The presiding judge erred in stating in the decree, that “he (defendant’s counsel) admitted that all of the allegations controverted by the answer had been proved.” (1) Because no such admission was made by defendant’s counsel. (2) Because there is no evidence to support such statement; and, further, because there is nothing in the record to support such statement.
5. The presiding judge erred instating in the decree, “the company kept the note, or rather their agent did,” because said statement is not supported by the evidence in the cause, in so far as it is meant that the agent kept the note.
6. The presiding judge erred in decreeing for the plaintiff, because it nowhere appears from said decree that, at the time of the application for the policy, and at the time of the issuing of the same, the said plaintiff was the wife of the deceased, J. McCullough Stepp.
7. The presiding judge erred in statiug in the decree, that “there was no provision either in the note or the policy to the effect that, if the note was not paid at maturity, the policy should be cancelled,” because said statement is not supported by the evidence or the policy.
8. The presiding judge erred in holding, “that the note of James McCullough Stepp was payment in full of the first year’s quarterly dues and assessments under the said policy,” and “that it was so accepted by the company,” because the question in the cause is not simply one of payment, but of “actual pay
9. The presiding judge erred in holding, “that the provisions in the policy, to the effect that the policy should not take effect until the first premium was ‘actually paid,’ was waived by the company when they accepted the note, issued the policy, and put it in force,” because: (1) The mere taking of the promissory note was not a waiver or abrogation of the terms of the policy, unless it (the waiver) was so declared and expressed either in the policy or the note. (2) Because the said policy was never in force, one of the terms thereof (“actual payment” of certain precedent dues) never having been complied with. (3) Because the plaintiff having based his right to recover in the complaint by alleging payment premiums, cannot now claim to recover by attempting to prove waiver of payment of premiums.
10. The presiding judge erred in holding, that the contract of insurance had taken “effect from the 5th June, 1889, to the 5th June, 1890, and that the provisions in said policy respecting forfeiture upon the non-payment of dues, relates to the payment of premiums other than those covered by the said note, because: (1) The contract of insurance never took effect, the precedent condition of actual payment of certain dues never having been performed. (2) Because the clause of forfeiture relates to all dues.
11. The presiding judge erred in decreeing for plaintiff the sum of two thousand one hundred and fifty 26-100 ($2,150 26-100) dollars, because: (1) By the terms of the policy, no interest was due on the amount of the risk, two thousand dollars ($2,000), inasmuch as no proof whatever, and no satisfactory proof, of the death of said insured was ever made and forwarded to the office of the said association defendant, in the city of Washington, D. C., and no evidence of death submitted until the trial of this cause, on the 31st day of July, 1891. (2) Upon the theory that plaintiffs are entitled to recover, the unpaid note of James McCullough Stepp, given for premium, and surrendered at the trial of this cause, should have been deducted from the amount
12. The presiding judge erred in not holding and adjudging, that the first dues and premiums were not “actually paid,” and that the policy never took effect.
13. The presiding j udge erred in not holding and adjudg-' ing, that the said policy became forfeited for non-payment of the dues therein mentioned, and the note given for the premium, and that the same was duly and legally cancelled, and was not in force at the time of the death of the said Stepp, on the 2d of April, 1890.
14. The presiding judge erred in attaching any importance (as stated in the decree) to the retention by the company of the note given for premiums, after maturity, inasmuch as the note had never been negotiated, was brought into the court at the trial of the said cause, and formally surrendered to plaintiff’s attorneys, and because formal notice had been given to the party of the cancellation of the policy.
Exceptions to Judgment.—1. The presiding judge, the “clerk for the Court of Common Pleas” for Greenville County, and the plaintiff’s attorneys erred in finding and stating, in the judgment entered herein on the 21st day of August, 1891, that “a trial by jury having been duly waived” in said cause, and because said judgment contains said erroneous statements, to wit,, “trial by jury having been duly waived” in said cause, inasmuch as there is no evidence to support such statement or finding, either in the record in the cause, the official stenographer’s report of the trial of the cause, or theminutes of the court.
2. Because the judgment herein is not officially signed by the “clerk focr the Court of Common Pleas” of Greenville County.
In our consideration of the several grounds of appeal, we will adopt the classification and mode of distinguishing the same of the appellant-
We interpret this statutory provision as denying to the judge the power, of his own motion, to withdraw the trial of issues of fact in actions on contracts from a jury. This right in the Circuit Judge can only be exercised in the manner pointed out by the statute. The difficulty to the appellant in presenting this question arises from his own act; this difficulty, on his part, arises from some positive action, on his part, whereby, it is asserted by the respondent, he has concluded himself from raising any question touching the conduct, in this instance, of the Circuit Judge. It sometimes happens that a Circuit Judge, on the motion of the appellant in the court below, rules a question to be competent, when in law such question is not competent ; or charges a request as the law in the case, when such
Now, let us examine that part of the “Case” to which no exception has been taken by appellant as to its accuracy. The appellant here stands upon the notes of the stenographer that are a part of the 1 'Case.” Iu those notes we find this language: “Mr. Bryan submitted that there was nothing in this case to go to the jury,” when the Circuit Judge overruled appellant’s motion for a non-suit, and used this language: “And let the case go to the jury.” To this Mr. Bryan excepted. “Mr. Bryan: I object to the case going to the jury, on the ground that the court errs in submitting it to the jury.” The argument commenced. “Mr. Bryan,, for the defendant, objected to the issues going to the jury, as it was a case for the judge. Mr. Barker (plaintiff’s attorney) then addressed the jury. At the conclusion of his remarks, Mr. Bryan, for the defendant, addressed the jury. While in the midst of his remarks to the jury, the presiding judge stopped Mr. Bryan, and requested argument on the question, whether the issues were for the court. The question was then argued by counsel for both plaintiff and defendant. Messrs. Barker and McCullough, for the' plaintiff, contended that there were issues to be submitted to the jury, and objected to the case being withdrawn from the jury. The judge overruled the objection, and announced that he would decide the case himself. Messrs. Barker and McCub lough, for the plaintiff, asked that exceptions to the discharge of the jury be noted.”
Now, does it not appear, from these quotations from the “Case,” as limited to the stenographer’s notes, that the attorney for appellant, in the court below, raised the very request, that the case be heard by the judge without the aid of the jury? But the “Case,” as amended by the court, shows, in addition, as follows: “After the reading of the pleadings in the cause, defendant’s attorney submitted that there were no issues of fact raised by the pleadings which should be left to
It would seem that the appellant should be precluded from raising this question now. The matter suggested, that such decision would give it into the power alone of the plaintiff, if he had lost on the Circuit, to have a new trial on this point, is quite true, but the appellant should remember that this course is the result of his voluntary action. And, speaking seriously, we cannot see how, in the case at bar, any suggestion of mistake in judgment of the appellant in this respect need be made or suggested, for, after all, if the jury had remained in charge of the cause, it would have been subject to the rulings on certain points of law by the Circuit Judge, which are practically decisive of the issues here involved.
To justly appreciate the application of the principles of the law here, it is necessary that we should state as briefly as is . consistent with clearness, the admitted facts of this controversy. On the 5 June, 1889, James M. Stepp -made his application to the defendant company, through its agent, A. E. Norris, for a policy on his life for $2,000, for the benefit of his wife, the plaintiff. The defendant issued policies upon the lives of its assured upon the plan of quarterly dues and assessments, paid in advance. But at the time the application for insurance was forwarded, the promissory note of the assured Stepp, covering the
The policy applied for was issued by the defendant, dated 10th June, 1889. By its terms, the life of the said Stepp was insured for $2,000, payable to the plaintiff, as his wife, ninety days from the receipt, at Washington, D. O., of satisfactory proof of the death of the assured, deducting from the $2,000 all indebtedness of the party to the association, together with the balance of any payments that would become due under the terms of the policy during the then current policy year. “Provided, that in case the said quarterly dues and assessment? shall not be paid on or before the several days hereinafter mem tioned for the payment thereof, at the office of the association, in the city of Washington, or to agents when they produce receipts signed by the president or secretary, then, and in such case, this policy shall cease and determine. * * * The quarterly dues under this policy are two 50-100 dollars, and the quarterly assessments six 86-100 dollars, the first of which are due and payable upon the delivery of this policy, which does not take place until such amounts are actually paid.” The note given by Stepp for $42 was endorsed by “A. E. Norris,’’
On 1st December, 1889, on demand made for the payment of the note, the same was not paid. Several other applications for payment of the note were made after 1st December, 1889. On 28th January, 1890, A. E. Norris, as the agent of the defendant, sent the letter, of whieh the following is a copy:
“Cokesbury, S. C., Jan. 28th, 1890.—Dear Sir: Please let me know what you propose to do about your note. We fully expected the money on Friday, Saturday, Monday, and to-day, but have neither money nor explanation. Please let me hear from you to-morrow. If you only knew my condition, I am sure you would make an effort and pay me, after I have waited so long. Pleasesend to morrow without fail, and oblige yours, (signed) A. E. Norris. (Addressed) Mr. J. M. Stepp, Honea Path, S. C.” The assured died 2 April, 1890, and his widow, as beneficiary of the policy, sued the defendant.
It seems to us that these questions are suggested: 1. What was the contract of the parties! 2. Was it competent for the defendant to vary the terms of the policy, so as to substitute an annual premium in stead of the quarterly dues and assessments, such annual premium to be on a credit instead of an actual payment thereof, before the policy should be valid to protect against the death loss that occurred before the payment! In other words, could there be a waiver of these conditions? The language of Mr. Justice Bradley in delivering the judgment of the Supreme Court of the United States in the ease of Thompson v. Insurance Company, 104 U. S., 258, well expresses the foundation of business success in life insurance: “Prompt payment and regular interest constitute the life and soul of the life insurance business.” So we might enumerate rules that regulate and promote success in any other business in life. It is in the power of the farmer, the banker, the physician, the lawyer, the manufacturer, and others, to discard rules that bring prosperity and success in the business of each one named, and substitute others attended with more risk. There is no limitation upon their contractual powers so long as they move within the limits of the law. So in the matter of life insurance,
But let us see what the contract in this case was. When and upon what did the minds of the insurer and the insured meet? When the insured sent forward his application, accompanied by his note for the annual dues and assessments, reaching from 5 June, 1889, to 5 June, 1890, for a $2,000 policy, and obtained defendant’s receipt for such annual dues and assessments for such insurance, that entered into and made up his proposition, and, on the other hand, when the insurance company acted on his application, accepted his note knowing of the receipt, and issued and delivered a policy to the insured, did not the minds meet? Was not every element of a contract in such transactions entered into between these parties? It seems so to us.
The policy and the note in the case at bar being silent as to forfeiture in case of non-payment of note for premiums at maturity, are there any provisions of the law governing contracts that will end the policy in such contingency? The two cases that seem to us directly bearing upon this matter are those of McAllister v. Insurance Company, 101 Mass., 558, and Miller v. Insurance Company, 12 Wall., 302. In the first case just cited, the facts were these: the policy named as its consideration a premium already paid, and a like sum to be annually paid during its continuance, and that it should not take effect until the premium is paid. Such first premium was not actually paid, for one-half was paid in cash and the other half secured, to be paid by one note due at six months, and another note in five years. In the policy, it was stipulated that in case any premium due upon the policy shall not be paid at the day when payable, the policy shall thereupon become forfeited and void. At the maturity of the note which matured in six months, the assured refused to pay the same, remarking that he would not have any thing more to do with the company, and abandoned the whole thing. The policy and the note did not provide that the failure to pay the note for the premium at maturity should
In the second case cited (Miller v. Insurance Company, 12 Wall., 302), these facts were set forth: That the insurance company had instructed its agents not to deliver policies until the premiums were paid, but that the agent delivered the policy in question upon the execution of certain notes for a part of such premium, and relied for the payment of the balance of the premium upon the assurance of a friend of the insured that he would pay such balance. The court held the company liable. In its judgment, it held, amongst other things, as follows: “Attempt is made in argument here to show that the general agents have no power to waive such a requirement (payment of premium), or to deliver the policy to the insured, without first exacting the payment of the cash premium, but the court here, in view of the circumstances of this case, is entirely of a different opinion. Where the policy is delivered without requiring payment, the presumption is, especially if it is a stock company, that a credit was intended, and the rule is well settled, when a credit is intended, that the policy is valid, though the premium was not paid at the time the policy was delivered, as where credit is given by the general agent, and the amount is charged to him by the company, the transaction is equivalent
In the work of Mr. May on Insurance, section 359, the author says: “The recital in the policy of the receipt of the premium is prima facie evidence of the payment, but only prima facie. Like all other receipts, it is open to explanation.” The same author, at section 360, says: ‘ ‘But the prepayment of a premiu m may be waived, as by an assurance that the payment of the money on the delivery of the policy ‘makes no difference.’ And if the agent be authorized to receive the premium, an agreement between the applicant and the agent, that the latter will be responsible to the company for the amount, and hold the applicant as his personal debtor therefor, is a waiver of the stipulation in the policy, that it shall not be binding till the premium is received by the company or its accredited agent. The same is true if the language of the policy is that the premium shall be paid before the policy shall become valid. And if the policy require actual payment, and the assured offers to pay his check for the amount of the premium upon the bank where the agent also keeps his account,” it will be good. “And, in fact, the delivery of the policy without exacting the payment, raises the presumption that a credit is intended, and is a waiver of the condition of a prepayment. The waiver may be inferred from any circumstances fairly showing that the insurers did not intend to insist upon the prepayment of the premium as a condition precedent. And so the non-payment of an annual premium due on a specified day may be waived,” etc. Mr. Bliss, in his work on Life Insurance, at section 186 (edition of 1872), says: “A company may, however, waive the prompt
But we cannot go further in these quotations. This court is satisfied with the conclusions of the Circuit Judge in regard to the construction he has given this contract of insurance, so far as the waiver by the defendant of the payment of the quarterly dues'and assessments and the substitution of the note therefor, and also that such contract of insurance was not destroyed by the failure to pay the note at maturity.
It remains for us to dispose of a few more points raised by the appellant under the present heading of his appeal.