Cope v. Jefferson Standard Life Ins. Co. , 134 S.C. 532 ( 1926 )

The opinion of the Court was delivered by

Mr. Justice Watts.

This is an action upon a life insurance policy for $5,000 written upon the life of Walter D. Cope, deceased intestate; the policy was payable to his estate; and this action is brought by his wife as his administratrix. The complaint states in usual form an action upon a life insurance policy.

The defendant insurance company, by its answer, sets up the defense that the premiums were not paid when due, and that, therefore, the policy had lapsed and was forfeited at the death of the insured. In reply, the plaintiff respondent claimed that the lapse or forfeiture, if any, had been waived by the defendant appellant.

The case was tried at the November, 1923, term of the Common Eleas Court for Orangeburg County before Special Judge Chas.' Carroll Simms, with a jury, resulting in a verdict for the plaintiff respondent for the amount demanded, with interest, less the premium charges due upon the policy, and less indebtedness due defendant under said policy. The defendant insurance company moved for a directed verdict, and also moved for a new trial, but both motions were refused.

The exceptions raise three questions: (1) Did the Court err in refusing to direct a verdict for the defendant or to grant it a new trial? (2) Did the Court err in charging the jury erroneous propositions of law? and (3) Did the Court err in refusing to charge the jury certain propositions of law as requested by the defendant?

We think that his Honor was right in submitting the question of waiver to the jury under all the facts and circumstances of the case: The correspondence of Lyles and Lyles; Mr. Lyles’ testimony; what the agent said about the “blue note” and the “yellow note,” and the note renewed; and whether the health certificate was required or not; whether the insured was misled or not.

The question whether indulgences granted the in-’ sured by the defendant constituted waiver was properly submitted to the jury. It was not a question to be determined by the Court. Sparkman v. Supreme Council, 57 S. C., 16; 35 S. E., 391.

Even if no one of the facts testified to be sufficient in itself to warrant an inference of waiver, yet, if, when all are taken together, they tend to produce that result, then there was no error in submitting that question to the jury. Dantzler v. Cox, 75 S. C., 334; 55 S. E., 774. Clark v. Insurance Co., 101 S. C., 249; 85 S. E., 407.

Provisions for forfeiture in an insurance contract are for the benefit of the insurer, and may be waived at the insurer’s option. The policy is not void for breach of condition, but merely voidable. Kingman v. Insurance Co., 54 S. C., 599; 32 S. E., 762. An agent authorized to solicit insurance may waive forfeiture. Huestess v. Insurance Co., 88 S. C., 31; 70 S. E., 403. Forfeitures are not favored in the law, and Courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture or any agreement to do so on which the party had relied and acted. Hartford Insurance Co. v. Unsell, 144 U. S., 439; 12 S. Ct., 671; 36 L. Ed., 396.

It is said in New Eng. Mut. Life Ins. Co. v. Springgate, 129 Ky., 627; 112 S. W., 681; 113 S. W., 824; 19 L. R. A. (N. S.), 227 :

“So the question comes to this: Did the company, when the right to forfeit the policy accrued, elect to forfeit it or treat it as a subsisting obligation ? If it elected then to treat the policy as a subsisting obligation, it cannot, when subsequent events made it to its interest to do so, withdraw the election it then made, and say the policy was forfeited. Forfeitures are not favored in the law. When once waived they cannot be afterwards insisted upon.”

We see no error on the part of his Honor as made by the exceptions.

All exceptions are overruled, and judgment affirmed.

Mr. Acting Associate Justice J. H. Marion concurs in result. Mr. Justice Marion concurs in result.