Opinion
13504
November 3, 1932.
Before STOLL, J., Sumter, March, 1932. Appeal dismissed. Judgment affirmed.
Action by Gillard McLoud against the Metropolitan Life Insurance Company. From an order overruling a demurrer to the complaint, defendant appeals.
The complaint referred to in the opinion follows:
The plaintiff for a cause of action against the defendant above named alleges and states:
1. That the defendant is a corporation organized and existing under the laws of the State of New York and was at the times hereinafter mentioned and still is doing business in the County of Sumter, State of South Carolina by permission of the State Insurance Commissioner.
2. That in consideration of the payment of twenty-five cents and in consideration of the agreement to pay a like amount weekly, the defendant did issue and deliver to the plaintiff its insurance policy No. 93520477, in and by the terms of which defendant agreed to pay to the plaintiff when said plaintiff reached the age of 79 years, the sum of $435.00 and upon the death of the plaintiff any time prior to the date of maturity of the endowment to pay the said sum of $435.00 to the executor or administrator of the insured or to such person equitably entitled thereto by reason of having incurred expenses on behalf of said insured.
3. That after said policy was issued the plaintiff, through Agnes Porter who was recognized by both the plaintiff and defendant as agent for the plaintiff, continued the payment of said weekly premiums thereunder.
4. That defendant secured possession of the premium receipt book issued in connection with said policy and refused to return the same until some time after December 21, 1931, advising the said plaintiff's agent from time to time the amount due on said policy which amounts were immediately sent to defendant. That plaintiff was entitled to possession of said book at all times.
5. That from time to time the plaintiff through said agent, Agnes Porter, sent all sums of money necessary to keep in force said policy to the defendant in the medium of checks on the First National Bank of Sumter, S.C. That the defendant cashed said checks and appropriated said money to its own use failing and refusing to credit the same upon the premiums due.
6. That included in said checks were two checks issued on May 13, and July 17, 1931, which defendant represented that it did not receive and the said agent for the plaintiff stopped payment on said checks. However, on October 5, 1931, although money had been sent said company to replace said checks so stopped, the defendant presented said checks to the said First National Bank of Sumter, S.C. for payment and the same were refused.
7. That plaintiff through said agent, Agnes Porter, has repeatedly called to the attention of the defendant that all premiums due had been paid in full, but defendant this plaintiff alleges upon information and belief, wrongfully, willfully, unlawfully, and with the intention of lapsing said policy in order to cheat and defraud said plaintiff appropriated the money tendered as premiums to its own use and lapsed said policy on the 21st of December, 1931.
8. That although all of said checks with the exception of the two specifically referred to as stopped were cashed by the defendant, said defendant represented to the said agent of plaintiff that all of said checks had been turned down at the bank and refused to credit the proportionate amount thereof upon the policy of the plaintiff.
9. That since said policies were wrongfully lapsed, plaintiff through his agent has offered to pay any amount due thereon after the payments above referred to have been properly applied and has repeatedly requested that said payments be properly applied, but that the defendant has refused to reaudit or change said books.
10. That all of said acts were unlawful, fraudulent, and with utter disregard of the plaintiff's rights and with the intention to cheat and defraud the plaintiff out of said insurance and said insurance premiums, and to appropriate the said premiums to its own use, and to defeat plaintiff's rights under said policy, all to his damage in the sum of three thousand dollars.
Wherefore, plaintiff demands judgment against the defendant in the sum of Three Thousand ($3,000.00) Dollars and for the costs of this action.
Messrs. Elliott, McLain, Wardlaw Elliott, for appellant, cite: As to intention of parties in contract: 108 S.C. 66; 93 S.E., 422; 78 S.C. 157; 59 S.E., 856; 70 S.C. 108; 49 S.E., 232; 77 S.C. 187; 57 S.E., 756; 91 S.C. 417; 74 S.E., 1067; 96 S.C. 240; 80 S.E., 472; 110 S.C. 233; 96 S.E., 295; 116 S.C. 380; 108 S.E., 153. When one party notifies other that he elects to break contract then tender becomes idle performance: 138 S.C. 435; 136 S.E., 762; 84 S.C. 434; 66 S.E., 880; 113 S.C. 10; 101 S.E., 47; 117 S.C. 480; 109 S.E., 406; 118 S.C. 146; 110 S.E., 119; 111 S.C. 49; 96 S.E., 692. Action for damages cannot be maintained by insured for anticipatory breach: 183 Mass. 326; 67 N.E., 238; 186 N. Y., 16; 78 N.E., 584; 9 Ann. Cas. 661.
Messrs. M.M. Weinberg and Marion Moise, for respondent, cite: Where vendor repudiates contract vendee not barred of his right of specific performance for failure to make tender: 117 S.C. 487; 138 S.C. 435; 136 S.E., 435; 136 S.E., 762; 113 S.C. 10; 13 C.J., 662; 6 R.C. L., 948. Where company wrongfully refuses to receive premiums due on life policy insured may recover premiums paid: 27 Am. Rep., 561; 135 N.E., 353; 21 S.W.2d 405; 199 S.E., 730; 163 S.W. 192; 45 Conn., 693; 144 Fed., 342; 75 C.C.A., 304; 76 Va., 355; 77 S.C. 187.
November 3, 1932. The opinion of the Court was delivered by
The above-entitled cause, together with nineteen others against the same defendant, but in the names of different plaintiffs, came before Hon. Philip H. Stoll, presiding in the Court of Common Pleas at Sumter, March 22, 1932, on demurrers to each complaint. It was agreed by counsel that the order in one case should apply to all. Accordingly, the demurrer was heard in the McLoud case, and being adverse to defendant, it appealed in all the cases. On the 22d of July, 1932, appellant notified the attorneys for the respondents in the cases shown on the title page of the transcript of record, that it had abandoned the appeal in all cases except that of McLoud v. Metropolitan Life Insurance Company, reserving the right to appeal from any final judgment which may be rendered in said actions.
We are, then, concerned only with the McLoud case.
The demurrer which was heard by Judge Stoll was predicated upon the ground that the complaint did not state facts sufficient to constitute a cause of action, in that:
"(A) It contains allegations that the policy of insurance was issued; the premiums paid and not refunded."
"(B) It contains allegations that the policy was of force during the period of time when collections of premiums were made."
The demurrer was overruled, and this appeal followed, grounded upon four exceptions which elaborate the grounds of the demurrer.
This appeal is governed by the opinion of this Court in the case of Wilkes v. Carolina Life Insurance Company, 166 S.C. 475, 165 S.E., 188, filed August 17, 1932.
In circumstances very similar to those set out in the complaint in the action here present, it was held that the complaint stated a cause of action and was not demurrable.
That is the conclusion of this Court in this case.
Appeal dismissed; judgment affirmed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER and CARTER and MR. ACTING ASSOCIATE JUSTICE W. C. COTHRAN concur.