Summary
finding a cause of action for fraud did not survive the death of a person who was allegedly defrauded by an apparent cancellation of an insurance policy
Summary of this case from Ferguson v. Charleston Lincoln MercuryOpinion
15275
June 5, 1941.
Before GASTON, J., Anderson County. Reversed and remanded with directions.
Action by Marie Mattison, administratrix of the estate of Newt Mattison, deceased, and in her own right, against the Palmetto State Life Insurance Company, a corporation, for sick benefits due decedent under policy of insurance and death benefit due plaintiff in her own right, and for actual and punitive damages for deceit and fraud. From a judgment in favor of plaintiff defendant appeals.
Complaint and demurrer directed to be reported follow:
COMPLAINTThe plaintiff above named, complaining of the defendant respectfully shows to the Court:
For the first cause of action:
1. That she is the duly appointed administratrix of the estate of Newt Mattison, deceased, and the beneficiary of the policy of life insurance, issued on the health and life of Newt Mattison under its policy No. 20844.
2. That defendant is a corporation organized under the laws of the State of South Carolina with offices and agents in the county and State aforesaid.
3. That while the above-numbered policy of insurance was in full force and effect, plaintiff's intestate became permanently and totally disabled by reason of bodily disease and under the terms of the said policy became entitled to sick benefit payments in the sum of two dollars per week, claim for which was filed and notice thereof given to defendant; whereupon defendant's agent who had customarily collected premiums at the home of said Newt Mattison, ceased to call at said home to collect premiums, or to pay the said weekly benefits due. That plaintiff's intestate then tendered payment of said premiums at the local office of defendant, which tender was refused, and blanks for filing claims were likewise refused, and defendant undertook to lapse said insurance while said Newt Mattison was sick and disabled, and while it was indebted to him for benefits then accrued.
4. That plaintiff's intestate continued sick and disabled and entitled to weekly sick benefits from the ____, day of December, 1936, to the date of his death on December 3, 1938, when the death benefit payable to Marie Mattison, beneficiary and widow of deceased, became entitled to the payment of said death benefit. That defendant refuses to pay either the sick or death benefits, and plaintiff is entitled to judgment against the defendant for sick benefits of Two dollars per week from December ____, 1936, to the date of the death of said Newt Mattison on December 3, 1938, and the plaintiff in her own right is entitled to the death benefit of One Hundred Dollars.
Wherefore plaintiff prays for judgment against the defendant, for sick benefits of two hundred and eight dollars, and for the death benefit of one hundred dollars and the costs of this action.
For the second cause of action:
1. That she is the duly appointed administratrix of the estate of Newt Mattison, deceased, and defendant is a corporation under the laws of South Carolina with offices and agents in Anderson County, South Carolina.
2. That on or about the ____, day of December, 1936, plaintiff's intestate was the owner and holder of a certain policy of insurance in defendant corporation, numbered 20844, upon which defendant's agent customarily called at the home of said Newt Mattison to collect the premiums and pay claims when due. On said ____, day of December, 1936, plaintiff's intestate became permanently and totally disabled on account of bodily disease, and defendant paid several claims from time to time until on or about the ____ day of March, 1937, when defendant's agent called at the home of said Newt Mattison and asked to inspect the said policy of insurance. The said policy of insurance was turned over to said agent for the purpose of inspection, whereupon defendant's agent carried said policy away and failed and refused to return said policy to plaintiff's intestate, or to return and collect premiums on same. That plaintiff's intestate then sent the premium money to the local office of defendant company, and the tender of payment refused at said office and said Newt Mattison's request for blanks to be executed was likewise refused.
3. That the acts of defendant's agent in taking and carrying away the said policy was done willfully and fraudulently and constituted a fraudulent scheme of defendant to bring about a cancellation of said insurance policy accompanied by a fraudulent act as aforesaid, with intent to cheat and defraud plaintiff's intestate of his rights under said contract of insurance, and as a direct result of said willful, wanton and fraudulent action of defendant's agent, plaintiff's intestate was damaged in actual and punitive damages in the amount of fifteen hundred dollars.
Wherefore plaintiff prays for judgment against the defendant for the sum of fifteen hundred dollars actual and punitive damages, and the costs and expense of this action.
DEMURRERNow comes the defendant, Palmetto State Life Insurance Company, and demurs to the amended complaint of the plaintiff herein, upon the following grounds, to wit:
1. That several causes of action have been improperly united therein, in that the first cause of action seeks the recovery of alleged contractual benefits under policy of insurance No. 20844, and there is improperly joined and united therewith a second cause of action for alleged fraud and deceit, which does not arise out of the same transaction, or transactions, connected with the same subject of action as alleged in said first cause of action.
2. That several causes of action have been improperly united in the first cause of action, in that the plaintiff, in a representative capacity, seeks recovery of certain benefits alleged to be due to her decedent, and improperly joins and unites therewith an alleged cause of action in her individual capacity for death benefits alleged to be due under said policy of insurance.
3. That the second cause of action does not state facts sufficient to constitute a cause of action, in that the same seeks damage for alleged fraud and deceit practiced upon the decedent, Newt Mattison, any right of action for which was personal to said decedent and did not survive upon his death.
Messrs. Tobias Turner of Columbia, and Mr. Leon W. Harris of Anderson, for appellant, cite: As to joinder of actions: Sec. 487, Code 1932; 183 S.C. 345; 191 S.E., 56; 110 S.C. 534; 96 S.E., 532; 155 S.C. 388; 152 S.E., 675; 136 S.C. 231; 134 S.E., 222; 178 S.C. 240; 182 S.E., 436; 11 S.E.2d 391. As to survival of right of action: Sec. 419, Code 1932; 113 S.C. 440; 102 S.E., 641; 20 S.C. 477; 40 S.C. 393; 18 S.E., 929; 112 S.C. 32; 99 S.E., 762; 40 S.C. 393; 18 S.E., 929; 174 S.C. 97; 177 S.E., 29; 170 S.C. 432; 170 S.E., 475.
Mr. E.B. Castles and Mr. Leon L. Rice, for respondent, cite: As to joinder of actions: Sec. 487, Code 1932; 11 S.E.2d 391; 1 A.J., 469; 193 S.C. 339. As to damages for breach of contract: 190 S.C. 201. As to survival of right of action: Sec. 419, Code 1932; 105 S.C. 329; 89 S.E., 1021; 135 S.C. 90; 1 A.J., Sec. 82, p. 130.
June 5, 1941. The opinion of the Court was delivered by
There will be reported herewith the complaint and demurrer appearing in the Transcript of Record, and which have reference to Policy No. 20844. There is a second policy involved, bearing the No. 20837. The complaint and demurrer on this policy are identical with the first mentioned, and by agreement the ruling of this Court on the one will govern both cases.
The Circuit Judge overruled Grounds 1 and 3 of the demurrer, and sustained Ground 2 to the extent that plaintiff-respondent could not "unite in one suit her claim as a beneficiary under the policy of insurance * * * with her claims as administratrix in the first and second causes of action"; and granted to plaintiff-respondent leave to amend her complaint by omitting and striking out any and all demands of individual claim. He also ordered that the cases proceed to judgment under Section 792 of the Code upon the complaint of plaintiff-respondent as administratrix.
The defendant-appellant has duly appealed to this Court from the order on the demurrer upon seven exceptions which it states in printed brief raises the following questions:
"1. Are the two causes of action inconsistent?
"2. Did the two causes of action grow out of the same transaction?
"3. Did both causes of action belong to the same class under Section 487 of the Code?
"4. Did the second cause of action survive?
"5. Could the Court order a consolidation of the causes of action when that question was not then before the Court?"
Respondent neither states the "Questions Involved," nor takes issue with appellant's statement thereof.
If appellant's Question 4 is answered in the negative, it will be unnecessary to pass upon Questions 1, 2 and 3.
Under the common law there was no survival of actions in tort. Section 419 of the Code of 1932 reads as follows: "Survival of Right of Action — Causes of action for and in respect to any and all injuries and trespasses to and upon real estate and any and all injuries to the person or to personal property, shall survive both to and against the personal or real representative (as the case may be) of the deceased persons, and the legal representatives of insolvent persons, and defunct or insolvent corporations, any law or rule to the contrary notwithstanding."
It is readily seen that under the above-quoted section, there are but two instances wherein a cause of action survives: (1) For and in respect to any and all injuries and trespasses to and upon real estate, and (2) any and all injuries to the person or to personal property. And it is just as readily seen that respondent's second cause of action does not come within either of the instances where a cause of action survives. As was stated in Claussen v. Brothers, 148 S.C. 1, 4, 145 S.E., 539, 540, 61 A.L.R., 826, in discussing the statute now under consideration (then Section 375, Volume 1, Code of 1922): "While the act is remedial, and a liberal construction should be given to its provisions ( Morris v. [Spartanburg Ry., Gas ] Electric Co., 70 S.C. [279], 281, 49 S.E. [854], 855), we must resort, in arriving at the intent of the Legislature, to the actual words used in the statute, and the court should not place such judicial construction upon the language used as to effectuate its own conception of right rather than the intent of the Legislature."
The order appealed from did not order a consolidation of the cases for trial. It is merely suggested therein "that either party may move to consolidate the cases for trial."
Reversed and remanded, with leave to respondent to again amend her complaint so as to set out her first cause of action within twenty days from the filing of the remittitur herein; and with leave to appellant to serve an answer thereto within twenty days after service of such amended complaint upon it, or its counsel.
MR. CHIEF JUSTICE BONHAM and MESSRS. JUSTICES FISHBURNE and STUKES concur.