Assuming what, possibly his Honor the presiding Judge should not have assumed, that the policy of insurance was a valid policy from the time it was issued, I think that his Honor correctly construed the complaint in his charge to the jury, as follows: "I call your attention particularly to the fact that this is not an action like the ordinary action — this is not an action upon the policy of insurance. The ordinary action where a person takes out a life insurance policy, and the company doesn't pay it ordinarily the action is brought upon the policy — the person brings suit — the beneficiary, executor, or any other brings suit upon the policy to recover the amount of the policy; this is not that kind of case; this is not a suit upon the policy for the amount of the policy; butthis is an action for the alleged fraudulent breach of thatcontract of insurance." (Emphasis added.)
It is conceded that the company issued the policy in question, insuring the life of Ensley Bradley; that the premiums were duly paid during the lifetime of the insured; and that she died while the policy was apparently, on its face, of active force.
Two main issues were presented upon the trial of the case, and are, upon this appeal, presented to this Court: (1) Was *Page 320 there sufficient evidence in the case justifying the submission to the jury of the issue, whether or not the company breached its contract with the insured? (2) If that issue should be determined in favor of the plaintiff, was there sufficient evidence in the case, justifying the submission to the jury of the issue, whether or not the breach of the contract was accompanied by such circumstances of fraud on the part of the company, as warranted a verdict of punitive damages?
Upon the opening of the case, when counsel for the defendant moved that the plaintiff be required to elect whether he could proceed to trial upon the contract or upon the tort alleged the Court announced: "My ruling is, they do not have to elect; the complaint states only one cause of action, which I rule to be an action for fraudulent breach of contract." To which Mr. Hamilton, of the counsel for the plaintiff, declared: "That is what we elect to stand on." And when his Honor, the presiding Judge, in his charge to the jury, again so construed the complaint (see quotation above), no objection was raised to his statement of the issues. So that any cause of action based upon the alleged tort of obtaining possession of the policy upon a false promise or misrepresentation, and withholding it from the plaintiff "until the fire had been put to the company." has been waived by such election.
It is manifest that the second issue above stated cannot be reached until after the first issue shall have been decided in favor of the plaintiff, that the company has breached its contract. It is conceded that the company has refused to pay the amount of the insurance, but it is obvious that such refusal does not constitute a breach of its contract, if the company had a legally valid reason for such refusal. That can only be determined by a review of the evidence in the case.
It appears that on August 21, 1925, the insured Ensley Bradley, a daughter of the plaintiff Cornelius Bradley, signed a written application for a policy of insurance with *Page 321 the defendant company — what was known as an "Industrial Policy" — insuring her life in the sum of $186.00, payable in the event of her death to her estate and calling for a weekly premium of 10 cents.
In her application, and stated to have been as an inducement to the issuance of the policy, she represented that she had never had any of a long list of diseases, among which was "disease of the lungs"; and that she had not been under the care of any physician within three years. The application contained the following declaration: "I hereby declare that the statements recorded above and on the reverse side hereof are true and complete and I agree that any misrepresentation willfully made shall render the policy void and that the policy shall not be binding upon the company unless upon its date I shall be alive and in sound health."
On August 31, 1925, the policy was delivered pursuant to this application. It contained the following statement: "If the insured * * * has within two years before the date hereof been attended by a physician for any serious disease or complaint on or before said date, has had any pulmonarydisease * * * the company may declare this policy void and the liability of the company in the case of any such declaration, or in the case of any claim under this policy, shall be limited to the return of premiums paid on the policy. * * *"
The insured died on February 18, 1926, and on February 20th the plaintiff filed with the company proofs of death, signed by him, with a certificate of Dr. Desportes, attending physician at the time of her death, and a certificate of Dr. Moore, who had previously attended her, both of which the claimant agreed should be considered as parts of the proofs of death, and which the policy provided should be evidence of such facts as were stated therein in behalf of the company.
In the statement of the plaintiff, he replied to the question "cause of death," by referring the company to "Form 66," *Page 322 which was the statement of Dr. Desportes, the attending physician, and in which his reply to this question was "Pulmonary Tuberculosis," the duration of which he placed "from history given" as seven months, which would date back to July, 1925, a month before the date of her application.
In the statement of Dr. Moore, which was also a part of the proofs of death submitted to the company by the plaintiff, along with his own statement and that of Dr. Desportes, in answer to the question, "Did deceased ever suffer from any form of tuberculosis?", he replied, "Yes, I treatedher for Pulmonary Tuberculosis in April, 1925"; that he treated her from April 28, 1925, to May 30, 1925, for tuberculosis.
Both statements of the applicant that she had not had any disease of the lungs and had not been treated by a physician within the two preceding years, are shown by evidence supplied by the plaintiff to have been untrue.
It appears incontrovertibly, therefore, that the company had the right to decline payment of the policy and that thereforethere could have been no breach of the contract ofinsurance.
It is a significant fact that between the date of the application and the death of the insured, namely, in November, 1925, a sister of the insured died with tuberculosis — a member of the same family.
But, assume, for the argument's sake, that there was evidence of the company's breach of the contract, sufficient to carry that issue to the jury, I find in the evidence not a suggestion which justified the submission of an issue of fraud on the part of the company in such alleged breach. The only circumstance that lends the least degree of color to this suggestion is that the agent Adcock, under a representation that the company would pay the policy, secured the policy from the plaintiff and forwarded it to the company with the proofs *Page 323 of death supplied by the plaintiff and that the company upon demand refused to return it to the plaintiff after declining to pay the insurance.
In the first place, the policy provides for payment uponsurrender of the policy with the proofs of death. The company surely should not be charged with a fraudulent invasion of the plaintiff's right when it demanded what it was entitled to have and what was expressly made by the policy a condition of its payment.
In the next place, the agent Adcock is not shown to have had any other authority than to secure the policy and with the proofs of death submit the matter of payment to the company which he did. The plaintiff would have the Court to hold that notwithstanding the provision of the policy that the existence of tuberculosis at the time of issuing the policy would avoid it, a local collector had the authority to bind the company absolutely to the payment of the policy. Why send the proofs of death in at all, if not to have the company pass upon its responsibility under the policy?
But, it is insisted with vehemence, that the company was guilty of fraud in withholding the policy from the plaintiff. If the company declined payment, it was then that it breached the contract, if there was a breach; and if thereafter it committed a tort by withholding the policy, that was a matter not at all connected with the breach which had already occurred, and for which the plaintiff's counsel expressly waive recourse against the company.
After securing the policy and the proofs of death, with the statements of the plaintiff and the physicians, the company declined payment and so notified the plaintiff not later than April, 1926, as conclusively shown by the letter to the district manager from the company and his communication of its contents to the plaintiff. He knew as early as that that the company was going to contest his claim; he knew eventhe number of the policy and its amount. What possible *Page 324 harm or inconvenience even could come to him from the possession of the policy by the company? He could have sued without it, as the record here shows that his present attorneys did, for they gave notice to the company to produce the policy at the trial of the case which had been commencedwithout it.
I can find no possible justification in the refusal of the defendant's request: "I charge you that if you find from the evidence that Ensley Bradley had tuberculosis prior to August 21, 1925, you cannot find any greater verdict than Two and 50/100 ($2.50) Dollars and interest at seven per cent. from February 28, 1926, to date in favor of plaintiff against defendant."
It went to the marrow of the case, whether there had been a breach of the contract of insurance by the company.
Without adverting to other assignments of error, I am convinced that, not only, as his Honor held on motion for a new trial, the case is a weak one, but that, upon both issues discussed, the defendant's motion for a directed verdict should have been granted. A top with so small a "null" should not be allowed to spin at all.