Opinion
10284
October 21, 1919.
Before PRINCE, J., Anderson, Fall term, 1918. Reversed and new trial ordered.
Action by Mollie E. Cole, administratrix of the estate of William H. Cole, against the Jefferson Standard Life Insurance Company. Judgment for defendant on a directed verdict, and plaintiff appeals.
Messrs. Kurtz P. Smith and A.H. Dagnall, for appellant, cite: As to the authority of the Insurance Commissioner: Code of 1912, vol. I, sec. 2669; 84 S.C. 256; 130 Minn. 32; 164 N.W. 495; L.R.A. 1918f, 545; 38 Minn. 281; 37 N.W. 782; 6 L.Ed. 253; 77 Minn. 483; 46 L.R.A. 442; 100 Minn. 445; 10 L.R.A. (N.S.) 250; 147 Wis. 327; 37 L.R.A. (N.S.) 489; 204 U.S. 364; 51 L.Ed. 523; 136 Wis. 146; 17 L.R.A. (N.S.) 821; 143 U.S. 649; 36 L.Ed. 294; 67 Minn. 279; 69 N.W. 1094; 254 U.S. 355; 62 L.Ed. 349; 199 Mass. 190; 127 A.S.R. 485; 42 S.D. 291. As to estoppel: 181 U.S. 74; 45 L.Ed. 758. As to duty of defendant to apply dividends to payment of premiums: (Miss.) 78 So. 362; L.R.A. 1918d, 1010; note L.R.A. 1918d, 1914; 23 L.R.A. (N.S.) 304 (note by annotator); 91 Wn. 324; L.R.A. 1918a, 1240; 78 S.C. 77. As to insured being entitled to extended insurance: 82 S.E. (Ga.) 825; 121 Minn. 395; 141 N.W. 518; 34 Ann. Cas. 163; 45 Conn. 480; 29 Am. Rep. 693; 19 Ind. App. 49; 49 N.E. 44; 65 Am. St. Rep. 392; 126 Fed. 82; 115 Ky. 100; 103 A.S.R. 301; 78 S.E. (Va.) 639; 246 U.S. 365; 62 L.Ed. 773; 173 Mo. 329; 72 S.W. 935; 82 S.E. 823; Bouvier's L. Dict. (defining foreclosure); 115 Va. 257; 78 S.E. 639, 640; 9 Misc. Rep. 6; 29 N.Y. Supp. 44; 12 Misc Rep. 127; 33 N.Y. Sup. 67; 91 S.E. (Ga.) 429. As to forfeitures: 103 S.C. 288; 25 Cyc. 872; 16 A. E. Enc. L., 2d Ed. 941; 29 A. E. Enc. L., 2d Ed. 1097; 16 A. E. Enc., 2d Ed. 934; 16 A.E. Enc. L., 2d Ed. 938; 54 S.C. 603; 13 S.E. Rep. 236.
Messrs. Brooks, Sapp Kelly, Lee Moise and Bonham, Watkins Allen, for respondent. Messrs. Brooks, Sapp Kelly and Lee Moise cite: As to authority of the Insurance Commissioner: 13 L.R.A. (N.S.) 1046; Vance on insurance, pp. 86, 87; 63 S.E. 304. As to dividends — forfeiture — application: 101 C.C.A. 56; 76 S.C. 535; L.R.A. 1918a, p. 904; 68 S.E. 1035; 38 S.W. 116; 1st Cooley on Insurance 123; 109 N.Y. 421; 117 N.Y. 459; 130 N.W. (Neb.) 434; L.R.A. 1918a, pp. 904-906. As to waiver: 90 S.C. 1; 65 S.C. p. 1.
October 21, 1919. The opinion of the Court was delivered by
This is an action on a policy of insurance on the life of William H. Cole, issued by the Greensborough Life Insurance Company on March 1, 1911, and assumed by the Jefferson Standard Life Insurance Company on September 20, 1912.
William H. Cole died on May 24, 1918. The deceased had borrowed on his policy the sum of $309. The premium due on March 1, 1918, of $91.92 was not paid. The policy provided for a distribution of the profits only at the end of 20 years. The plaintiff offered to prove the profits at the end of 5 years. The evidence was excluded by the Court.
The failure of evidence to prove that there was sufficient funds in the hands of the company was, of course, manifest, and the presiding Judge directed a verdict for the defendant. From the judgment entered upon this verdict, the plaintiff appealed.
Before this policy was issued, the Insurance Commission of South Carolina had issued an order forbidding a distribution period of more than 5 years. This policy violated that order making its distribution period 20 years, instead of 5 years.
On the trial of the cause, the plaintiff offered to prove the amount of profits earned by this policy. The defendant objected on the ground that the policy provided for a distribution period at the end of 20 years and that no profits could be claimed before the end of 20 years. This objection was sustained, and from this ruling the plaintiff appealed.
1. This ground of appeal must be sustained.
The insurance commissioner required as a condition precedent to the issuance of a license, that no policies should be issued with a longer distribution period than 5 years. To this the Greensborough Life Insurance Company promised compliance and accepted its license. The State is a party, and a controlling party, to all contracts. Whatever the expressed language of the policy may be, the law reads that contract to provide for a 5-year and not a 20-year distribution period. The testimony was competent, and its exclusion was error.
2. There was evidence from which waiver might be inferred, and that question should have been submitted to the jury.
The judgment is reversed, and a new trial ordered.