Burbage v. Jefferson Standard Life Ins. Co. , 138 S.C. 208 ( 1926 )

December 30, 1926. The opinion of the Court was delivered by All of the exceptions are overruled, under the authority of Cope v. Jefferson Standard Life Insurance Company,134 S.C. 532; 133 S.E., 440, and authorities therein cited, and judgment affirmed.

MESSRS. JUSTICES BLEASE and STABLER and MR. ACTING ASSOCIATE JUSTICE C.J. RAMAGE concur.

MR. JUSTICE COTHRAN dissents.

MR. JUSTICE STABLER: I concur in the opinion of Mr. Justice Watts that the judgment in this case should be affirmed, and will state briefly my reasons therefor.

On October 9, 1906, the Security Life Annuity Company issued a policy of insurance on the life of Miles E. Mims, in the sum of $1,000.00, the surviving children of the insured by his wife, Mary, being designated in the policy as beneficiaries. On September 20, 1912, this contract of insurance was assumed by the defendant; and about December 16, 1923, Mims, the insured, died. Upon refusal of the insurance company to pay to the beneficiaries, the plaintiffs in this case, the amount of the policy, this suit was begun.

For a defense, the defendant alleged that the policy had lapsed by failure of the insured to pay the annual premium of $44.94, due October 9, 1923, and that the value of the policy had been exhausted by loans made to the insured thereon. The jury gave a verdict for the plaintiffs for $480.66.

The defendant appeals to this Court, imputing error to the trial Judge, in refusing its motion for a directed verdict and error in his charge to the jury in several particulars named.

An examination of the record discloses that the annual premium was due October 9, 1923, and that the insured had 30 days of grace in which to make payment. It appears that the insured had borrowed from the company on the policy an amount almost equal to its cash surrender value. Apparently being unable to raise the necessary sum to pay the premium and the interest then due on the loan, a total of $72.56, the insured wrote the company on October 24, 1923, inquiring whether it would allow him "to make a note for any part of his payment." The company sent him in October, 1923 — whether before or after insured's letter of October 24, we are unable to say — the following offer of "proposed settlement":

Note for ........................................... $ 82.08
Cash ..............................................    32.33
_______
Total ........................................ $114.41

On November 5, 1923, the company wrote the insured a letter inclosing a note for $82.07, saying:

"If you will sign (note) and return with check for $32.34, your canceled note and premium receipt will be sent you."

There was testimony on behalf of the respondents tending to show that this offer of the company's proposed settlement" was accepted by the insured, and that, in response thereto, the note was executed by the insured, and that the signed note, with a check for the required sum, was duly mailed to the company. The testimony of Hessy Mims, a son of the insured, was positive on this point. He testified that he was acting for his father in the matter and that the executed note and check were mailed by him to the defendant, in a properly addressed envelope. Testimony of the appellant tended to show that the note and check were never received by the company.

Hessy Mims also testified that the insured had an account in the Bank of Eutawville, on which bank the check was drawn of about $40; and that two or three days before the death of his father, the witness drew out this money, but made arrangements with the bank at that time to take care of this check should same be presented for payment. It is true that, when Hessy Mims, on cross-examination, testified as to the verbal arrangements with the bank to take care of the check, the trial Judge remarked:

"I don't think that is competent."

It seems, however, that this testimony was regarded as being before the jury as the appellant was allowed, in reply to the testimony of Mims to call as a witness the bank cashier, J.E. Hinnant, who testified that the insured had no account in the Bank of Eutawville at the time the check is alleged to have been given or for a period of six months prior thereto, and that no money was drawn from the bank nor arrangements made for the payment of the check, as testified to be Hessy Mims. It appears that, under this testimony, the jury had before them for consideration, along with other issues of fact, the question of such arrangement with the bank for the payment of the check.

Whether the insured accepted the offer of the "proposed settlement" made by the company to him was, under the testimony, a question of fact for the jury. If the note and check were mailed to the insurance company, as the testimony for the respondents tended to show, the presumption arises that they were received by the company in due course of mail. Hightower v. Metropolitan Life InsuranceCo., 121 S.C. 378; 113 S.E., 478. The testimony, however, of the appellant, that the note and check were never received by the company, taken with other circumstances, tended to rebut such presumption, and the trial Judge properly submitted the question to the jury.

It is not within the province of this Court to say whether testimony given in a case is true or untrue. The question of the credibility of witnesses is a matter entirely for the jury.

The charge of the trial Judge when taken as a whole, does not disclose any prejudicial error, as complained of by the appellant.

MESSRS. JUSTICES WATTS and BLEASE, and MR. ACTING ASSOCIATE JUSTICE RAMAGE, concur