Austin v. Independent Life and Accident Ins. Co.

Goolsby, Judge

(concurring):

I concur in the result reached by the majority in Parts II and III of their opinion and concur fully in Part IY thereof.

*164As to Part II, I agree that the appellants The Independent Life and Accident Insurance Company and Murray Harter failed, as required by Rule 50(a) of the South Carolina Rules of Civil Procedure, to include as a specific ground for their directed verdict motion the ground that Austin suffered no damage as a result of the appellant’s alleged fraud; therefore, they did not properly preserve this issue for appellate review, even considering the complaint’s allegations and the arguments made by trial counsel in support of their motion. Cf. Connolly v. People’s Life Insurance Company of South Carolina, 294 S. C. 355, 364 S. E. (2d) 475 (Ct. App. 1988) (specificity requirement of Rule 50(a) is not a technical one and the Court of Appeals may look to the pleadings and the arguments of trial counsel to discern the trial judge’s understanding of the basis of the motion before him).

On the issue of reliance and Austin’s right to rely on the representation made by Harter concerning the policies sold her, I agree with the majority that Austin, because of her illiteracy, advanced age, and other circumstances, could rely on those representations. Thomas v. American Workmen, 197 S. C. 178, 14 S. E. (2d) 886, 136 A.L.R. 1 (1941).

As to Part III, no facts I have seen disclose Independent and Harter “unauthorize[dly] assum[ed] and exercise[d] the right of ownership” over Austin’s money. Ray v. Pilgrim Health & Life Insurance Company, 206 S. C. 344, 347, 34 S. E. (2d) 218, 219 (1945). In fact, Austin received the policies for which she gave the appellants money. Cf. Christensen v. Pugh, 84 Utah 440, 36 P. (2d) 100, 95 A.L.R. 608 (1934) (where property is obtained with the owner’s consent, even though under a misrepresentation as to the purpose of the transfer, an action for conversion will not lie until some further act is done by the transferee in disregard of the owner’s right in the property). It is doubtful whether Independent could lawfully have denied a claim made under either policy. See Hall v. Allstate Insurance Co., 284 S. C. 62, 324 S. E. (2d) 341 (Ct. App. 1984) (holding that an insurer cannot retain a premium received and at the same time deny the insured the benefit of his bargain under the policy).