Harvey v. Jefferson Standard Life Ins. Co.

164 S.E. 6, 165 S.C. 427, 1932 S.C. LEXIS 100

• Court: Supreme Court of South Carolina
• Decided: April 13, 1932
• Docket: 13385
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Stabler.

This is an action on an insurance policy for $1,000.00, issued by the defendant company on the life of one Willie Brant, who died June 25, 1929. A loan had been made on the policy, reducing the amount of the claim to $623.00, and interest thereon. Mamie Sue Brant, the beneficiary and wife of the insured, died May 26, 1930, and the respondent, Lorena B. Harvey, their only child, was appointed administratrix of the estate of her mother, and, as such, was duly substituted as plaintiff. The issue made by the pleadings is whether the policy was in force at the time of the death of the insured, or whether it had lapsed and the plaintiff -was entitled only to a paid-up policy for $132.00. On trial of the case, defendant’s motion for a directed verdict for that amount in favor of plaintiff was overruled by the Court, upon the ground that there was evidence of waiver by the company of the forfeiture, which required the submission of the case to the jury.

The main question presented by the appeal is, Did the defendant waive compliance with the following provision of the policy: “Should this contract lapse because of default in any premium, or interest due on any loan, it may be reinstated at any time within three years after lapse, provided satisfactory evidence of insurability be furnished the company, and all arrears with interest thereon be paid.”

It is elementary that forfeiture is not favored by the Courts; it is also elementary that, if there is any testimony tending to show waiver of the forfeiture, an issue of fact is made for the jury, unless only one inference can be drawn from the evidence, when the question becomes one of law for the Court.

Waiver has been frequently defined as “the voluntary relinquishment of a known legal right,” and is referable to the intention of a party as indicated by language or conduct.

In 27 R. C. L., at page 908, we find: “To constitute a waiver within the definitions already given, it is essential that there be an existing right, benefit, or advantage; a knowledge, 'actual or constructive, of its existence, and an intention to relinquish it.”

Such a provision as that above quoted is intended for the protection of the company, in the reinstatement of a policy after any lapse thereof, “because of default in any premium, or interest due on any loan.” Under such provision, the company has the legal right to require the insured, as a prerequisite to reinstatement of a lapsed policy, to furnish “satisfactory evidence of insurability,” and to pay “all arrears with interest thereon,” or, upon his failure to comply with either of these conditions, to deny reinstatement; of course, it could waive the forfeiture of the policy by relinquishing its right to require a-compliance with such provision. Did it do so in this case ?

W. J. Harter, a witness for the plaintiff, testified that he was engaged in business with Willie Brant, and that, at the request of Mrs. Brant, Willie’s wife, he sent to the company a check for $59.76 in payment of the past-due premium and interest on the policy loan; that before mailing the check, he took up the matter with the company through its agents, Biles & Biles, at Orangeburg; that, upon information given him by them, he called the head office of the company at Columbia, S. C., and talked with its head manager at that place, a man by the name of Passmore; that Passmore told him the insured was in arrears with his policy in the sum of $59.76; that the witness asked him whether, if he would send the company that amount, it would renew Brant’s insurance and put him in good standing, and that Passmore replied that it would; that, pursuant to this conversation, he mailed to Passmore at Columbia a check payable to the company for that amount, and that this check was received and deposited by the company, was returned to the bank upon which it was drawn, and was paid.

Passmore, as it appears from the evidence, was an agent of the company, located at Columbia, and duly authorized to receive renewal premiums, etc., and knew that Brant’s policy had lapsed for nonpayment of the premium. However, with knowledge of this fact, and with the further knowledge that the company, under the policy, had a right to require that the insured furnish satisfactory evidence of his insurability as a condition of reinstatement, he entered into negotiations with the insured, through Harter, for reinstatement of the policy, without requiring any evidence of insurability. In other words, the company, in effect, said to the insured through its agent, Passmore: “A forfeiture of the policy exists by reason of your failure to pay the premium when due, and under its provisions, if you desire to be reinstated, we may require you to furnish us satisfactory evidence of your insurability, as well as to pay all arrears and interest thereon; but if you will pay the arrears with interest, we will reinstate the policy without requiring you to furnish any evidence of your insurability.” The arrears were paid pursuant to this arrangement, and whether the company, by such acts and conduct, intended to waive the forfeiture of the policy, was an issue of fact for the jury.

It is urged, however, that, as Passmore did not know the insured was ill, there could be no waiver on the part of the company. This position is unsound, for the reason that it was not a question of waiving by the company of the physical condition of the insured at the time of the application for reinstatement, but of waiving the requirement of the policy for the furnishing by the insured, as a prerequisite of reinstatement, of satisfactory evidence of his insurability; whether in the form of a health certificate or otherwise. This is not a matter in equity but an action at law, in which matters of fact are for the jury; and the question .presented to the Court is not whether the jury reached a correct conclusion under the evidence, but whether there was any testimony tending to show waiver on the part of the company by its conduct, which would require the submission of that question to them; and, as we have indicated, there was unquestionably such testimony. Citation of authority is unnecessary, but see McManus v. Insurance Co., 96 S. C., 375, 80 S. E., 613; Powell v. Insurance Co., 97 S. C., 375, 81 S. E., 654; Hightower v. Insurance Co., 121 S. C., 378, 113 S. E., 478; Rogers v. Insurance Co., 135 S. C., 89, 133 S. E., 215, 45 A. L. R., 1172; Allen v. Insurance Co., 139 S. C., 41, 137 S. E., 214.

We have examined the other questions raised by the appeal and fipd them to be without merit.

The judgment of the Circuit Court is affirmed.

Mr. Ci-xiee Justice Beease and Mr. Justice Carter and Circuit Judge G. B. Greene concur.