Wells v. Inter-Ocean Casualty Co.

June 24, 1930. The opinion of the Court was delivered by This action by the plaintiff, Phyllis Wells, against the defendant, Inter-Ocean Casualty Company, was commenced in the Court of Common Pleas for Sumter County, February 27, 1929, for recovery of the amount of an insurance policy, issued by the defendant upon the life of Mittie Green, mother of the plaintiff, under which policy the plaintiff was named as the beneficiary. Issues being joined, the case was tried before his Honor, Judge John S. Wilson, and a jury at the July, 1929, term of said Court, and resulted in a verdict for the plaintiff for the sum of $514.55, the full amount of the policy with interest. From the entry of judgment on the verdict the defendant has appealed to this Court.

Taking up the questions presented by appellant's exceptions, we will first consider the allegation of error imputed to the trial Judge in refusing to grant defendant's motion for direction of a verdict, based upon the ground that the plaintiff, as beneficiary under the policy, had made material and false representations in the application for insurance on which the policy in question was issued, and in the refusal to grant defendant's motion for a new trial based upon the ground that the plaintiff, as beneficiary under the policy, had made material and false representations in the application for insurance on which the policy in question was issued and in the refusal to grant defendant's motion for a new trial based on the same ground. The defendant relies on the following provision of its policy:

"The insurance under this policy shall not cover any person under the age of one year nor over the age of sixty-five years. Any premium paid to the company for any period not covered by the policy will be returned upon request."

In this connection the defendant contends that the insured was between eighty and ninety years old and not an insurable risk, and that the plaintiff, as the beneficiary under the policy, by her material and false representations in the application for the insurance misled the defendant and in this way caused the defendant to issue the policy. In support of its position appellant lays emphasis upon the testimony of its agent, T.C. Robinson, who on direct examination, on this phase of the case, testified as follows:

"I am the agent that wrote this policy on the life of Mittie Green. I first saw Phyllis Wells in Pinewood. We were working from place to place and happened to hit on her up there at her mother's home. She was outside of the house in the yard or on the steps. I asked her about some insurance. She said she had some but would like to have some on her mother. Mr. Payne was with me.

"Q. Where was the mother sitting at that time? A. Sitting up in the house.

"Q. On the outside or on the inside? A. Inside.

"Q. Did you go up in the house? A. No, sir.

"Q. You were on the ground? A. Yes, sir; on the ground.

"Q. When you said Phyllis said she would like to have insurance on her mother, could you see her sitting up in the house? A. Yes, sir.

"Q. What did you tell Phyllis? A. I told her she looked to be a little too old, and passed on.

"Q. Could you tell what age she was at that time? A. No, sir.

"Q. You judged that she was too old? A. Yes, sir.

"Q. How long did you stay there? A. A minute or so.

"Q. When you left there and went on off, did you see Phyllis Wells any more that day? A. No, sir.

"Q. When was the next time you saw her? A. About two weeks after that.

"Q. Where did you see her? A. Down here at her home.

"Q. Where, what place? A. I don't know; somewhere down here.

"Q. In Sumter? A. Yes, sir.

"Q. Did you go to see her or happened to see her? A. Happened to see her.

"Q. What happened? A. She was out in the yard at her home. I was on the outside on the sidewalk, and she stopped me, then I went in.

"Q. What did she say? A. Said she wanted me to write this insurance for her on her mother.

"Q. What did you say? A. I said, `Your mother is too old,' she said `She is not but 56 years old.' I told her if she was certain, I would write the insurance.

"Q. If she had been over 65 years old — A. I told her anybody over 65 I didn't write.

"The Court: When was this insurance written?

"Mr. Moise: The 29th day of December, 1928.

"The Court: Go ahead.

"Mr. Moise: That is the date of the application.

"The Court: Yes.

"Q. Well, what did she say in reference to her mother's age? A. She said she was 56 years old.

"Q. What did she say with reference to her own age? A. Forty.

"Q. At that time did you write it down on an application? A. Yes, sir."

The testimony of the agent, Mr. G.W. Payne, who was with Mr. Robinson, testified to the same effect.

The application was not signed by the insured, neither was it signed by the plaintiff, the beneficiary, but the agent of the defendant who filled out the application signed the name of the insured to the application. The beneficiary, according to the testimony, could neither read nor write, and she denied that she told defendant's agent that her mother was only fifty-six years old. The following testimony of the plaintiff, the beneficiary, is pertinent to this question:

"I am the plaintiff in this case and am the daughter of Mittie Green. She lived at Pinewood, S.C. and had a policy of insurance with the Inter-Ocean Casualty Company. The agent first came to see my mother at Pinewood at her house. I was present.

"Q. State what took place. A. He said, `Let me take a policy on you,' and `had already joined one and couldn't take any more,' and he said, `Let me take one on your mother,' and I said, `All right,' and he said, `Who would pay for it,' and I said, `I would, but I would have to go to Sumter and get the money,' and he said, `I will meet you in Sumter, Saturday,' and he met me in Sumter at my daughter's house on Cleveland Street.

"I paid premiums of $2.50 and he gave me the policy. After the policy was delivered my mother was killed by a train at Pinewood. The policy was paid up at the time she was killed on the 14th of January, 1929. The company has never paid the $500.00.

"Q. At the time of the taking out of the policy, you say you were present, the agent was present and your mother was present, the insured; is that correct? A. Yes, sir.

"Q. When the agent was present there in Pinewood, before he came to you to collect the $2.50 premiums, did he or not talk with your mother about the policy? A. Yes, sir.

"Q. Did he talk to you? A. Yes, sir.

"Q. Can you read or write? A. No, sir; neither read or write.

"Q. Ever been to school at all? A. No, sir."

On cross examination of the plaintiff, she further testified in this connection as follows:

"Mr. Robinson was the agent who came to see about taking out the insurance. He came to my mother's house at Pinewood, where I was visiting.

"Q. Your mother was inside the room? A. No, sir; she was on the steps, too.

"Q. Sitting down there by you? A. Yes, sir.

"Q. He came up there and asked you if you wanted to take out some insurance? A. Yes, sir.

"Q. You told him you didn't want any, but you would take out some on your mother? A. Yes, sir.

"Q. He asked you how old your mother was? A. Yes, sir.

"Q. What did you tell him? A. I told him I didn't know, to look at her for himself.

"Q. Your mother, as a matter of fact, was between eighty and ninety years old, wasn't she? A. I don't know.

"Q. How old are you? A. I don't know, sir.

"Q. Are you married? A. Yes, sir.

"Q. Got any children? A. Yes, sir.

"Q. How many? A. I got six head.

"Q. All grown? A. Yes, sir; all about grown.

"Q. You are about fifty or sixty years old yourself, aren't you? A. I don't know sir; I might be; I don't know my age."

The plaintiff further testified to the effect that her mother could get around pretty well and do lots of work; that she was not blind nor deaf, as contended by defendant; that she was killed by train, about "dusk dark," according to her information; that the agent told her at Pinewood, when the first conversation took place and when he saw the insured, that he did not know whether he would be able to get a policy for her or not on account of her age, but that he would try; that at the time there were two agents present, "one said he believed he could get her in the policy; had different classes of policies, one for young people, some for old people, some for middle aged, some for young people, and he said he would look it up and see"; and that the agents went away and soon afterwards delivered the policy to her, at which time she paid the premium. Other inferences might be drawn from other parts of her testimony.

This testimony, as well as additional testimony bearing on this phase of the case, clearly shows that a question for the jury was presented, and his Honor, the trial Judge, committed no error in refusing defendant's motion for direction of a verdict upon the ground stated. For the same reason his Honor cannot be charged with error in refusing defendant's motion for a new trial.

A further allegation of error imputed to the trial Judge is in submitting to the jury the question of waiver, it being the contention of the appellant that there was no inference to be drawn from the testimony that the defendant, or its agents, had waived any of the provisions of the policy, but that, on the contrary, it conclusively appeared that the defendants, in issuing the policy in question, had relied entirely upon the statements made by the plaintiff in the application for insurance. The testimony shows that the plaintiff did not sign the application for the insurance, and that she could not read or write. Further, if the testimony of the plaintiff is to be believed, and that was a matter entirely for the jury, the plaintiff made no representation to the defendant's agents as to the age of the insured, but told the agents that she did not know the age of the insured, and, further, that the agents of the defendant saw the insured at the time the agents had the first conversation with the plaintiff; that at the time of the said conversation with the agents the plaintiff and the insured were sitting on the steps together. According to this testimony the agents of the defendants had ample opportunity to observe the insured and determine for themselves her age. We think it was clearly the duty of the presiding Judge to submit to the jury the issue of waiver.

The only other question raised by the exceptions is that the presiding Judge erred in refusing defendant's motion "for a directed verdict on the ground that the plaintiff had, for valuable consideration, executed a valid and binding release, which was a complete bar and defense to the action, and that his Honor should not have submitted the question of fraud in procuring the release to the jury. * * *" It is the contention of the appellant that there was no testimony tending to prove that the release was procured by fraud. The appellant also contends that it was in error in refusing a motion to grant a new trial based on the same ground.

In response to the allegations of the complaint, as to the defendant having procured from the plaintiff through fraud a release of her claim under the policy, the plaintiff testified as follows:

"Q. After your mother's death, did the agent of the company call to see you about the policy? A. How is that?

"Q. After your mother was killed by the train, did the agent come to see you on Cleveland Street, to see you about the policy? A. Yes, sir.

"Q. What did he say to you? A. He say if I didn't take the money what I paid to paid to put her in the insurance, I wouldn't get the other money.

"Q. Did he ask you for the policy? A. Yes, sir; he asked me for the policy.

"Q. Did you give it to him? A. Yes, sir.

"Q. What did you sign for him, if anything? A. He said he wanted me to sign that. I don't know what he wanted me to sign.

"Q. How much money did he give you? A. $5.26.

"Q. Did you give him a receipt for that? A. Yes, sir.

"Q. When you gave him a receipt, what did he tell you? A. He said if I didn't take that, I wouldn't get no more, said my mother was not entitled to that, because she was deaf and blind, said if I didn't take what I pay in, I wouldn't get no more.

"Q. On the representations made you by the agent of the company, did you give him back the policy? A. Yes, sir; I give him back the policy when he come after it.

"Q. Now, auntie, this paper you signed for the insurance company, did you sign it by mark or how? A. I touched the pen; he wrote it.

"Q. Did you know what was in the paper? A. No, sir; he asked me if I could read or write, I said no, and he said, `come touch the pen,' and two more men come out of the car and witnessed it; I didn't know who they were.

"Q. Two more men witnessed your mark? A. Yes, sir."

The defendant offered testimony tending to show that the release was procured in good faith; that the plaintiff was not imposed upon but understood what she was doing when she signed the release. The record shows that plaintiff through her attorneys promptly sent to the defendant company and tendered to it the sum of $5.26 paid to the plaintiff by the agents of the defendant when the plaintiff signed the alleged release, which tender the defendant refused. As we view the record it is our opinion that, under the rule that in passing upon such question the testimony must be considered in the most favorable light for the plaintiff, the presiding Judge properly submitted the question to the jury. Further the matter of granting a new trial based on the same ground was a matter for the determination of his Honor, it appearing in the first instance that the question was one properly for the jury. Under our view of the case his Honor, the trial Judge, committed no error in refusing a motion for a new trial.

The exceptions are overruled, and the judgment affirmed.

MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE and STABLER concur.