Crosswell v. Connecticut Ind. Ass'n , 51 S.C. 469 ( 1898 )

The opinion of the Court was delivered by

Mr. Justice Gary.

In order to understand the questions raised by the exceptions, it will be necessary to set out the complaint and the third defense in the report of the case. The case was tried before his Honor, Judge Benet, and a jury, at the November, 1896, term of the Court for Sumter County. The jury rendered a verdict in favor of the plaintiffs.

1 The defendant appealed, upon exceptions which were prepared before the charge of the presiding Judge had been corrected, and, therefore, some of the exceptions are inapplicable to the charge. The first exception is as follows: 1. “Because his Honor, the presiding Judge, erred in permitting the witness, L. S. Carson, the cashier of the National Bank of Sumter, against the defendant’s objection, to testify that it was the custom of the said bank to pay checks of its customers in good standing, although their accounts were overdrawn.” The following printed condition is indorsed upon the policy: “In case any note, check or draft given in payment, or part payment, of money due the association, shall not be paid at maturity, this policy lapses, in the same manner as it would had the payment not been made when due.” No time was specified in the draft when it was to be paid; it was, therefore, payable on demand. Payment, however, was not demanded, but the draft was returned to Mrs. Croswell, on the ground that it was not received until the policy had lapsed on account of the non-payment of the premium. Under these circumstances, even if there was error, it was harmless, and this exception is overruled.

The second exception is as follows: 2. “Because it having been proved, or conceded, that the plaintiff, Arthur Crosswell, when he drew the check for $43.20 on the First National Bank of Sumter, did not have on deposit there a sufficient amount to pay it, his Honor, the presiding Judge, erred in permitting the witness, B. S. Carson, cashier of said bank, against defendant’s objection, to testify that he would have paid said check if it had been presented to the said bank on the 7th of September, 1895, the date of the check.” This exception is disposed of by what was said in considering the first exception.

The third exception is as follows: 3. “The right of the defendant company to payment of the premium of $43.20, at the times and place prescribed in the policy, was a question of law arising out of the very terms of the contract or policy sued on, and should not have been left to the jury to determine; so that, it is respectfully submitted, his Honor, the presiding Judge, erred in charging the jury: (1) That they must decide whether it was entitled, or whether the right existed, to have that amount of money paid within a certain time or in a proper manner, and at a proper place; and (2), that being a matter of defense, it was incumbent on defendant to satisfy them, by the clear preponderance of the evidence, that said payment was not so made; whereas we contend that (1) the right existed under the contract, unless there had been waiver, as hereinafter defined, and the' only questions for the jury to decide, under proper instructions, were: had there been a waiver? or, if not, had there been payment, in due time, in proper manner, and at the proper place? and (2) on these issues the burden of proof was on plaintiffs.” This exception was prepared before the charge was corrected, and is, at least in part, inapplicable to the charge as corrected. Furthermore, when all of his Honor’s charge is read that has reference to the questions mentioned in the exception, it will be seen that there was no error.

2 The fourth exception is as follows: 4. “Because his Honor erred in each and every portion of the main charge to the jury in this case, in stating or referring to the doctrines of waiver and estoppel, and the application of these doctrines to the issues involved, for the reasons: (1) that the plaintiff claiming the waiver must show that he relied upon such waiver, and was misled, to his prejudice, by the act, conduct, course of dealing, or by the non-action of the defendant, in 'such way as to estop the defendant from asserting its legal right; whereas this limitation of the doctrine of waiver, in contracts of insurance, was ignored and disregarded throughout the trial. To instance, his Honor, after defining waiver to be ‘the relinquishing, giving up or surrendering some known legal right,’ charged the jury that it may be found to exist if one ‘acts in such a way * * * that his conduct implies that he has waived his right,’ and that ‘waiver and estoppel amount to a bar or obstruction when once established,’ and that ‘waiver might be said to be an estoppel;’ and not only authorized, but directed, them to apply it, without warning them that in a case such as this, it could have no practical application at all, unless they found to exist the limitations ■and conditions just.stated.” After charging the jury in a general way upon the question of waiver, his Honor charged defendant’s first and second requests, which embody the limitations mentioned in the exception, and in no respect were the jury misled upon this question. This exception is overruled.

3 The fifth exception is as follows: 5. “Because in charging the jury upon the questions as to the drawing and forwarding the check for the premium of $43.20, of date 7th of September, 1895, by the plaintiff, Arthur Cross-well, to the defendant, and its receipt at the home office, his Honor erred in omitting to instruct the jury that the burden of proof was on the plaintiffs.” An inspection of the charge will show that the defendant had the benefit of the proposition of law, mentioned in the exception, which likewise is overruled.

The sixth exception is as follows: 6. “That his Honor, the presiding Judge, erred in charging the jury, that if they believed that whether the plaintiff, Arthur Crosswell, ‘had enough money in the bank or any money in the bank at all, if he had credit at the bank, to such an extent that the bank would honor his check, whether his account was overdrawn or not, the check was good payment, if offered in payment; and erred in further charging the jury that ‘if he (A. W. Crossw'ell) did not have the money in bank, to meet the check when presented for payment, and the jury believe that the bank would have paid the check when presented— if the check was received at the home office of the defendant before midnight of the 10th of September- — this was a good payment;’ whereas this instruction was inconsistent with the sound proposition previously charged, that if he, the said A. W. Crosswell, ‘did not have that amount of money to his credit in the bank on which the check was drawn, then the check would not be payment:’ whereas the only issue on this point to be submitted to the jury was, whether the said plaintiff had sufficient funds in the bank to meet the check, at the time it was drawn, and at the time it would have been presented in the usual course of business.” This exception is disposed of by what was said in considering the first exception.

4 The seventh exception is as follows: 7. “Because.his Honor, the presiding Judge, erred in charging the jury that if they found from the evidence that the premium for the year 1894 was paid with a check on the bank, ‘it was for them to say whether that was a waiver of the right of the company thereafter to expect payment in cash;’ whereas the manner or mode of payment in 1894 could not operate to vary the contract right of the company as to subsequent premiums, and could not operate as a waiver of any rights of the defendant; and even if the proposition was proper to be considered, his Honor omitted to state the limitation or condition upon which alone such waiver could be predicated — that is to say, that the plaintiff relied on such waiver, and was misled to his prejudice to such an extent as to create an estoppel; and secondly, there was no proof that the company claimed or expected payment of any premium in cash.” The defendant did not contend that the payment of the premium had to be made in cash; so that even if there was error, it was harmless, and the exception is overruled.

The eighth exception is as follows: 8. “Because the presiding Judge erred in submitting to the jury the question, whether the defendant ‘let the plaintiff send one check and accept it in payment, and afterwards declined a check in payment,’ and also erred in charging the jury that ‘it is for you to say whether the company has the right to demand cash instead of a check;’ whereas there was no proof that the defendant declined such check in payment on this ground, or demanded cash instead of a check; and no such issue of fact was presented to the jury by the evidence; that portion of the charge being based upon the mistaken assumption that the defendant had taken a position which it never assumed and which was distinctly disclaimed. We respectfully submit that this was an infringement of the constitutional provision as to Judges charging as to facts.” The language of the presiding Judge was in reference to a matter which was not put in issue, and even if there was error, it was harmless.

The ninth exception is as follows: 9. “Because his Honor erred in the remainder of his instructions to the jury as to the doctrine of ‘waiver,’ in that he omitted to state the limitations and conditions that the plaintiffs must have relied on, the act or conduct of the defendant, and thereby must have been misled to their prejudice; and secondly, in charging that any act that is calculated to mislead the plaintiffs, might amount to a waiver.” The . appellant states in his argument that the last proposition complained of in the reported charge is omitted from the substituted charge. That proposition is, therefore, necessarily withdrawn from our consideration. Not only is this exception too general to be considered, but is disposed of by what was said in considering the fourth exception.- See also the seventh of defendant’s requests, which the presiding Judge charged.

2 The tenth exception.is as follows: 10. “Because at the close of the charge, which had wholly ignored the limitations and conditions essential to be considered in relation to the. doctrine of waiver, as set forth hereinbefore in the fourth and ninth of these exceptions, and in reading and granting the first, second and seventh requests as submitted by the defendant, his Honor erred in omitting to correct any erroneous impressions which may have been made on their minds by the charge so widely at variance and inconsistent with the said requests as to be impossible of reconcilement with them.” This exception is too general, but apart from such objection, the charge when considered in its entirety as to waiver, will be found to be free from the error alleged in the exception.

5 The eleventh exception is as follows: 11. “Because his Honor erred in not submitting to the jury the third and fourth requests, unconditionally, and without reference to the alleged fact that the plaintiff, Arthur Crosswell, ‘had credit at the bank.’ And practically the issues presented by the said requests were to be considered only if they found, under a previous portion of the charge, that the defendant was entitled to have its premium paid at the time and place stipulated.” In charging the third request, the presiding Judge said: “I have charged you that, in connection with my charge, about whether Arthur-Crosswell had credit at the bank;” and in charging the fourth request, he said: “I have charged you that, with reference to the fact, if it is a fact, that he had credit at the bank.” These words were not intended, in any respect, to limit the doctrine stated in these requests, nor to attach conditions to them, as alleged in the exception, which is overruled.

The twelfth exception will not be set out, as the appellant’s attorney, in his argument, says that if the substituted charge should be adopted, the exception would be unavailing, and the substituted charge was adopted.

The thirteenth and fourteenth exceptions were abandoned.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.