Johnson v. Metropolitan Life Insurance

34 S.E.2d 757, 206 S.C. 415, 1945 S.C. LEXIS 81

• Court: Supreme Court of South Carolina
• Decided: July 18, 1945
• Docket: 15752
• Status: Published

Opinions

Mr. Associate Justice Stukes

delivered the majority Opinion of the Court.

Capital Motors, Inc., was engaged in the sale, repair, etc., of automobiles in Columbia and its place of business was destroyed by fire on February 13, 1942. Eubert Y. Johnson was a motor mechanic in the employ of the corporation and continued in its work of salvage for a few days afterward. An entirely unconnected, but similar, concern, Central Chevrolet Company, whose salesroom and garage was in the neighborhood, kindly loaned Capital Motors, Inc., office space in which to wind up its affairs. Some of the mechanics formerly employed by the latter went over to the employ of the Central Chevrolet Company.

Capital Motors, Inc., procured for its employees protection under a group life insurance policy, obtained by General Motors Corporation, the manufacturer of the motor vehicles which Capital Motors, Inc., was engaged in selling, and the employer reported monthly the names of the employees covered, those released from coverage and those added, and paid the premiums of the ones subject to the insurance. Johnson was given a certificate of his participation and protection in this insurance, dated as effective July 1, 1938, and the plaintiff in this action, his wife, was named as beneficiary. She brought suit as such, alleging the death of the insured when the policy was in effect as to him.

The answer made the issue which controls, that the death occurred after the termination of the policy insofar as the deceased was concerned. Motion for directed verdict was made upon that ground, among others, and we think it should have been granted, hence this judgment need deal with no other issue. The trial Judge was inclined to such view and frankly said to appellant’s counsel during the argument, contained in the record: “Personally I am inclined to agree with you, but under the rule I will have to- submit that question to the jury.” And he instructed them in part as follows: “So, you are limited, as I understand, to that simple issue. If at the time of his death he had been away from Capital Motors for more than 31 days, if he was not an employee of that particular corporation for more than 31 days before his death, then the plaintiff could not recover.”

Respondent testified for herself and offered in evidence the certificate of insurance. Liability upon the insurer was conditioned in the latter as follows: “If death occur while the employee is in the employ of áuch distribution unit of the employer, or within 31 days after termination of employment. * * *” She testified on direct examination that her husband moved with Capital Motors, Inc., to Central Chevrolet Company and continued to work with the former until March 27, 1942, when he quit and went to work at Fort Jackson where he was killed by accident on April 13th. Because respondent’s case depended upon her testimony alone, the cross examination is set out in full below.

“Q. Mrs. Johnson, did you ever see your husband’s pay checks after'the fire? A. Yes, sir.

“Q. How long was he paid by the Capital Motors,- Inc., after the fire? A. Until March 27th.

“Q. Mrs. Johnson, I mean Capital Motors’ checks. As a matter of fact, wasn’t the last check he got from Capital Motors dated February 20th and then on he was paid by Central Chevrolet Co. ? A. He was paid by Capital Motors.

“Q. Up to February 20th he was paid by Capital Motors ? A. Up to March 27th.

“Q. You konw there are two concerns. There was Capital Motors at the corner place on Gervais and Marion Streets and that burned down and just after that he helped with the salvage, and wasn’t the last time he was paid by Capital Motors, Inc., was February 20th and from then on he was paid by Central Chevrolet Company? A. He was being paid by Capital Motors.

“Q. That is after the 20th of February? A. Yes, sir.

“Q. Did you see the checks? A. He was paid in money. His check was cash.

“0. You don’t know whether he was working for Central Chevrolet after February 20th or not? A. He worked at Capital Motors. He didn’t work with Central Chevrolet. He worked for Capital Motors.

“Q. Didn’t he work at the Central Chevrolet plant? A. No, sir; not the Central Chevrolet, he did not.

“Q. What is that place between Sumter and Marion Streets? A. I don’t know.

“Q. That is the Central Chevrolet place? A. He worked for Capital Motors in the Central Chevrolet building. My husband worked for Capital Motors.

“Q. Do you know that he was working for Capital Motors? A. Yes, I carried him down in the automobile.

“Q. You carried him to Central Chevrolet Co.? A. Yes, that is where the Capital Motors was.

“Q. And that is where he was working? A. Yes, sir.”

The foregoing testimony was patently insufficient to raise an issue of fact for solution by the jury in view of the evidence offered by defendant. The latter included a deposition by the associate office manager of the appellant insurer in Detroit, who had supervision of the group policy involved. The insurer’s records, in evidence, showed that Capital Motors, Inc., reported for the month beginning March 1, 1942, that Johnson’s participation in the policy ceased on that date and his insurance terminated; no premium was paid for the month of March, the last preceding payment having been made for the month of February, 1942, and remitted during that month. Proper office records were made of the cancellation, which were introduced in evidence.

Another witness for the defendant was the former president and general manager of Capital Motors, Inc., until dissolution of the corporation. He testified from his company’s records that the deceased was employed by it and paid through February 19th and thereafter did not work for Capital Motors, Inc.; further that thereafter Johnson was employed by Central Chevrolet Company, with which Capital Motors, Inc., had nothing to do; and the witness was clear that after the date named, February 19th, the Company employed no mechanics, except a Mr. Baker whose title was service manager, and that they undertook no repair work after the fire and, indeed, had no workshop.

Still another witness for the.insurer was the young lady bookkeeper of Central Chevrolet Company who had been such for some time, including the period of its employment of the deceased. She testified from her employer’s records that Johnson was paid by the Central Chevrolet Company on March 13, 1942, which was for a prior period of approximately a week, and that he worked through March and was last paid on April 3d, and it was during the week including. the latter date that the deceased left the employ of Central Chevrolet Company.

“This declaration is but to say that the scintilla of evidence upon which a case should be sent to the jury must be real, material, and pertinent and relevant evidence, not speculative and theoretical deductions.” Turner v. American Motorists Ins. Co., 176 S. C., 260, 180 S. E., 55, 57. It is axiomatic that when there is no- competent and relevant evidence to sustain an issue of fact, the latter becomes an issue of law, and nonsuit or directed ver diet it proper upon timely motion. See the many South Carolina decisions in point in 32 S. E. Dig., Trial, p. 243, Key 142.

Careful consideration of the evidence adduced upon the trial of this case, viewing it most favorably for respondent, leaves no doubt that the lower Court should have directed a verdict for appellant. Hence the relevant exception is sustained and the case is reversed with instruction that the error be corrected by entry of judgment for the defendant.

Mr. Chiee Justice Baker and Messrs. Associate Justices FishburnE and Oxner concur.