September 25, 1942. The Opinion of the Court was delivered by The complaint in this case is apparently patterned on the complaint in the case of Neely against the same defendant, which case was before this Court in 1939, and is reported in 192 S.C. 71, 5 S.E.2d 568. But upon a trial of the instant case, the testimony discloses material differences; and in this case the defendant (respondent) timely took the position that it was the plaintiff's (appellant's) duty to read her policy or to have it read to her; that she had full opportunity to do so, and that her failure to perform such duty precluded a recovery.
On October 12, 1936, the respondent issued and delivered its policy of straight life insurance to appellant under the provisions of which the respondent agreed, in consideration of a weekly premium of 15 cents, to pay to the beneficiary named in the policy, upon the death of the insured, the sum of $72.00. The age of appellant was stated in the policy to be fifty-five years; and the policy contained the provision following: "Misstatement of Age. If the age of the insured as stated herein is not correct, then no greater amount shall be paid than the premium hereon would have purchased at *Page 190 the true age of entry, and if such true age at entry, was over 55 years the Company will not be liable for a greater amount than the premiums paid on this policy, and the beneficiary hereunder shall be bound by the provisions of this clause."
The testimony may be stated briefly: When the contract of insurance was applied for, the agent of respondent who solicited the insurance was informed by appellant that she was 65 years of age, but despite this, her age was stated in the policy written as being 55 years. The appellant did not read her policy, but kept it folded, and paid weekly premiums thereon in the aggregate of $11.70, that is, for seventy-eight weeks at 15 cents per week. In April, 1938, Mr. DuBose, the agent of respondent and the one who collected the weekly premiums, came to the home of appellant and informed her that he would have to take up her policy and return the premiums which had been paid as she was more than 55 years of age at the time the policy was written. Appellant informed Mr. DuBose that he would have to come back that night when her husband would be home. Accordingly, Mr. DuBose accompanied by a man from the home office of respondent (a Mr. Evans) returned to the home of appellant and the subject of procuring a return of the policy and refunding the premiums which had been paid was renewed, resulting in appellant giving up her policy and accepting a refund of the premiums which she had paid. At the time this was done, respondent's agent stated to appellant, "You are too old to carry this policy," to which she replied, "I told you I was sixty-five years old." Respondent's agent then stated, "I can't take the policy, I ain't got no right to take the policy from you, but we will have to get the policy; or, if you keep the policy, we cannot pay any death claim, because the Government won't allow me to pay any death claims on old people at your age." It was also testified that respondent's agent told appellant that "the Governor was applying to give you old pensions; and if I give *Page 191 them up (referring to the policy), you will get your pension." And that if she didn't give up the policy, no death claim would be paid but only the amount of the premiums refunded, and appellant wouldn't get a pension if it was known she was carrying this insurance.
The appellant surrendered her policy (the one involved in this suit, although retaining others on which she paid the premiums), accepted a check for $11.70, the amount of the premiums which she had paid thereon, and signed a full and complete release to respondent absolving it from "all actions, causes of actions, claims and demands of every kind and character arising under said policy," and acknowledged that she was forever estopped to claim that respondent is liable for anything more whatsoever under said policy. This release was also executed by her husband, the beneficiary named therein. The said check for $11.70 was retained by appellant for a week or more before it was cashed.
The appellant had the policy in her possession for more than eighteen months, and neither read it nor had it read to her. If she had done so, she would have been informed that her age was stated therein as being 55, and that all the respondent was liable for under the terms of the policy was the amount of the premiums paid thereon.
The first complaint made by appellant concerning the surrender of this policy was through her attorney in a letter dated January 19, 1940, in reply to which letter the respondent offered to return the policy, provided the $11.70 was refunded, and permit the appellant to resume the weekly payment of premiums, which offer was refused; but prior to the commencement of this action the sum of $11.70 was tendered respondent.
Following the surrender of the policy in question, the appellant procured another life policy from the Liberty Life Insurance Company in the identical amount, $72.00, the weekly premium on which was 10 cents, which policy was in full force and effect both at the time of the commencement *Page 192 of this action, and at the time of the trial of this case. So far as the record discloses, the Liberty policy was equally as valuable as the policy issued by respondent.
At the conclusion of appellant's testimony, the respondent moved for a nonsuit upon fourteen grounds, which motion was granted by the trial Judge, but without stating the ground or grounds upon which he granted it, and this appeal followed.
Briefly, the first ground was that there is no proof of actual damages; the first ground was that the policy itself contained the provision that if the true age of the insured was actually over fifty-five years, the company (respondent) would not be liable for a greater amount than the premiums paid on the policy; and the sixth ground was that the uncontradicted testimony was that the insured (the appellant) was over fifty-five years of age when the policy was applied for and issued. We deem it unnecessary to refer to the other grounds.
The exceptions do not conform to the rules of this Court, but we will in this instance waive this lack of conformity and pass upon the appeal.
Conceding, without so deciding that except for the fact that appellant failed to show that she had suffered any actual damages, and the fact that her testimony affirmatively removed any presumption of such damages, even nominal, the appellant would have been entitled to have her case submitted to a jury, still we are of opinion that the order of nonsuit was properly granted. And in reaching this conclusion we are disregarding the adverse factor that the appellant had the policy in her possession for more than eighteen months, and neither read it nor had it read to her.
Even conceding that fraud was practiced upon appellant in procuring a cancellation of the policy, yet, upon this matter being brought to the attention of the officials of respondent, the respondent promptly offered to return the policy to appellant upon a return by her of the premiums which had *Page 193 been refunded and re-establish the policy in full force and effect waiving the interim premiums, thus repudiating the fraudulent acts of its agents, and offering to restore thestatus quo at the time the facts first were brought to its attention.
Aside from this, the record discloses that the appellant suffered no actual damages; and any presumption of the existence of nominal damages not capable of exact measurement, has been affirmatively dissipated by the procurement by appellant of another policy of insurance in another company in the identical amount, at a smaller weekly premium, and so far as the record discloses this last policy is of equal value with the policy which had been issued to the appellant by the respondent.
The appellant having failed to prove any actual damages, and as aforesaid, any presumption of nominal damages having been overcome or destroyed by affirmative testimony, the appellant failed to establish a cause of action. See Watson v. Southern Railway Company, 104 S.C. 204,88 S.E., 461.
As to whether the question of punitive or exemplary damages should have been submitted to the jury, we quote from Cook v. Atlantic Coast Line R.R. Co.,183 S.C. 279, 281, 190 S.E., 923, 924: "Exemplary damages do not and cannot exist as an independent cause of action, but such damages are mere incidents to the cause of action and can never constitute the basis thereof. If the injured party has no cause of action independent of a supposed right to recover exemplary damages, then he has no cause of action at all; consequently, there must be allegations of actual or nominal damages in the pleadings and a proofthereof in the trial of the cause in order to support a verdict for punitive damages alone." (Italics added.)
The order appealed from is affirmed.
MR. CHIEF JUSTICE BONHAM and CIRCUIT JUDGE WM. H. GRIMBALL, ACTING ASSOCIATE JUSTICE, concur. *Page 194