McCoy v. Provident Life Insurance Co. ( 1930 )

May 23, 1930. The opinion of the Court was delivered by Roy McCoy, by his guardian ad litem, Alice J. McCoy, commenced this action on May 17, 1927. The pleadings and the testimony are not included in the transcript of record, but the agreed statement of facts shows that Roy was in the employ of the O.L. Williams Top Panel Company as a laborer, and as such was insured in a group disability policy issued by the defendant company to all employees of the Top Panel Company. Roy contends that he was injured while so employed and so insured, and this action was brought for the purpose of collecting indemnity under the policy for fifty-two weeks, less one week for which he had furnished proofs and been paid by the defendant. The answer, after denying the alleged injury to the plaintiff, set up as a second defense a release executed by him. The plaintiff filed a reply in which he attacked the release on three grounds: First, that he did not know the paper he signed was a receipt in full of all claims against the company; second, that the release was without consideration; and third, that it was obtained by fraud and misrepresentation.

The case was tried before his Honor, Judge Bonham, and a jury on October 14, 1929. Testimony was introduced for the plaintiff tending to show that he had been injured as alleged and was therefore entitled to payment; and for the defendant, tending to show the contrary. It appears also that the release relied upon was a check of defendant, payable to Roy McCoy — the amount not being shown but being presumed to be the amount due for one week's indemnity — containing a provision on the back thereof that the payee accepted it in full settlement of all claims against the company under the policy by reason of the alleged accidental injury; and that Roy received the check, indorsed his name across it under the release, and cashed it. Although there was no allegation in the pleadings as to the infancy of the plaintiff, testimony was introduced showing his age "to have been about sixteen years at the time of his injury and at the time of signing the release." The jury found for the defendant. The plaintiff then moved for a new trial upon the ground that Judge Bonham erred in failing to charge the jury the law with respect to plaintiff's infancy as affecting the release. From an order granting the motion, defendant appeals.

The only question involved is whether the trial Judge should have charged the law with regard to infancy, although there was no request for such charge, and although infancy was not pleaded in avoidance of the release.

The general rule is that infancy is a personal defense, which must be pleaded, and that failure to plead it constitutes waiver. However, in the case at bar, the testimony apprised the Court that the plaintiff was an infant at the time he signed the release and at the time this suit was brought, and his rights, therefore, were those of an infant, in the protection of which the Court is very zealous. We think that, under the circumstances, it was obligatory on the trial Judge to charge the law with regard to plaintiff's minority as affecting the release.

This case is not in conflict with State v. Lewis, 21 S.C. 598, in which an appeal from a judgment of the Circuit Court, denying a writ of certiorari in a trial Justice case, was dismissed. The return of the trial Justice stated "that no plea of minority was ever made before me in the oral answeror in evidence," and this Court said that, "the question must be determined by an inspection of the return and the face of the proceedings, and they failed to show the relator's infancy. * * *" In the case at bar, as we have stated, the plaintiff's infancy is shown by the evidence.

The order appealed from is affirmed.

MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE and CARTER concur.