Lanter v. So. States Life Ins. Co. , 114 S.C. 536 ( 1920 )

October 12, 1920. The opinion of the Court was delivered by There was a former appeal herein (MacKendree v. SouthernStates Life Ins. Co. of Alabama, 112 S.C. 335,99 S.E. 806). The action was on two life insurance policies issued by the defendant on the life of S.M. MacKendree. On the last trial the jury rendered a verdict against the defendant for the sum of $10,500.94, and the defendant appealed upon exceptions, which will be reported.

First Exception. The testimony on the last trial was practically the same as upon the former. When the prior appeal was heard, this Court ruled that there was error on the part of his Honor, the Circuit Judge, in directing a verdict, and in refusing to submit the issue of suicide to the jury. The exception is, therefore, overruled.

Second Exception. This exception cannot be sustained, for the reason that the appellant failed to show that there was prejudicial error.

Third Exception. Section 438 of the Code is not applicable, for the reason that the defendant is not defending the action as executor, administrator, heir at law, next of kin, assignee, legatee, devisee, or survivor of S. M. MacKendree, deceased. Rapley v. Klugh, 40 S.C. 134,18 S.E. 680; Norris v. Clinkscales, 47 S.C. 488,25 S.E. 797.

Fourth and Fifth Exceptions. The following is the reason assigned by his Honor, the presiding Judge, for refusing the defendant's motion: "It appears that since this case was begun S. Marshall MacKendree has died intestate, at the age of about 12 years, leaving no debts, according to the undisputed testimony on the trial herein, and leaving no estate except his interest in the policies of insurance sued upon in this action, and that his only heirs at law and distributees are his brother and sister, plaintiffs herein."

The ruling of his Honor, the Circuit Judge, is sustained by the case of Grant v. Poyas, 62 S.C. 426, 40 S.E. 891.

Sixth, Seventh, Eighth, and Ninth Exceptions. These exceptions are overruled for the reason that the appellant has failed to show prejudicial error.

Tenth Exception. The reasons assigned by his Honor, the presiding Judge, for his ruling are satisfactory to this Court.

Eleventh Exception. This exception is overruled for the reason that the defendant denied certain allegations of the complaint, thereby putting them in issue and requiring proof on the part of the plaintiff.

Affirmed.