The facts as set out in the opinion of Mr. Chief Justice Stabler are accurately stated with one exception. The opinion states that according to the testimony respondent was no longer in good health at the time of the cancellation of the policy. A careful reading of the testimony discloses respondent testified that at the time the case was being tried (January, 1939), she could not make the statement that she was in "sound good health in every way." The policy was cancelled in April; 1938, approximately nine months prior to the trial. There is no testimony tending to show the condition of respondent's health at the time the policy was cancelled.
Notice to the agent of appellant was notice to it, and appellant was bound by his knowledge. Eskew v. Life Ins.Co. of Virginia, 190 S.C. 515, 3 S.E.2d 251. For this reason, I concur in the opinion of the Chief Justice as to actual damages, there having been a wrongful cancellation of the policy of insurance. But I am unable to concur in that portion of the opinion which holds that there was testimony sufficient to take the case to the jury on the question if there was such a fraudulent breach of the contract accompanied by a fraudulent act as would warrant the award of punitive damages.
Here a field agent of appellant insurance company is making his visit among the agencies for the purpose of checking upon the policies appellant had issued, and finds that a policy had been issued to a woman admittedly over the age at *Page 81 which the appellant insures. It was his duty to take some action thereabout. Of course, as it develops, appellant in the handling of this matter should have resorted to a proceeding under Section 7987, Code of 1932. Appellant's field agent did not so proceed, but obtained a surrender of the policy (and refunded respondent all premiums she had paid thereon) by telling her she would have to give up the policy and go on the old-age pension; that the company could not carry her any longer, and that if she retained the policy her beneficiary could not get any more at the time of her death than the amount she had thus paid to the company by way of premiums, and that she could not get old-age pension if she retained the insurance. She further stated that she believed that such provisions were in the policy of insurance.
Under the terms of the policy no material misrepresentation was made, because if the insurance continued in force until the death of the insured, her beneficiary ordinarily could not have recovered more than the amount which had been paid in by way of premiums; and certainly under no circumstances an amount greater than $48.00, the face of the policy. The statements testified to by respondent as having been made to her by the agent of appellant, and which we have set out above, were not such material misrepresentations in the light of the provisions of the policy as to be the basis for an action for damages for the fraudulent breach of the contract accompanied by an act of fraud. Under the terms of the policy the respondent was entitled to $3.70, the amount of premiums which had been paid by her, and this sum she received at the time of the surrender of the policy.
It is conceded that the insured's age was sixty-five at the time of the application for insurance. She was then beyond the age for insurance. Therefore, even though the appellant took up her policy and cancelled it, this was no ground for punitive damages on the ground that she could not obtain *Page 82 other insurance. The appellant paid her for the amount it claimed was due under the policy as disclosed by the inspection, but appellant being bound by the knowledge of its agent, she was entitled to actual damages for the wrongful cancellation of the policy, and the verdict gives her actual damages.
Accepting respondent's testimony at its face value (which must be done on motion for a directed verdict on behalf of appellant) the only fraud in the case was perpetrated by appellant's agent on it at the time of the application for insurance.
For the foregoing reasons in my opinion, a verdict as to punitive damages should have been directed.
MR. JUSTICE BONHAM concurs.