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SWYGERT v. DURHAM LIFE INS. CO.

April 24, 1956

FANNIE SWYGERT, RESPONDENT,
v.
DURHAM LIFE INSURANCE COMPANY, APPELLANT.



The opinion of the court was delivered by: Oxner, Justice.

April 24, 1956.

This is a suit on a life insurance policy for $1,000.00 issued by the Durham Life Insurance Company to Charles B. Hornsby on May 1, 1942. The insured died in January, 1955 and the Company paid the amount of the policy to his wife whom it considered as the lawfully designated beneficiary. Thereafter plaintiff, Mrs. Fannie Swygert, claiming that she was the beneficiary, brought this action against the Company to recover the face amount of the policy with interest. The case was tried in April, 1955. At the conclusion of plaintiff's testimony, the Company unsuccessfully moved for a nonsuit, and upon conclusion of all the testimony both plaintiff and defendant moved for a directed verdict. The Court determined that the facts were undisputed and the issue solely one of law, and withdrew the case from the jury. After considering briefs of counsel, the trial Judge in an order filed on June 21, 1955, found that plaintiff was the lawful beneficiary and awarded her judgment for $1,000.00 with interest.

When the policy was issued, insured's mother, Mittie Hornsby, was designated as the beneficiary. The right to change the beneficiary was reserved in the policy in the following terms: "With the consent of the Company, the Insured may from time to time while this policy is in force change the beneficiary by request to the Home Office, upon the Company's prescribed form, accompanied by this policy, such change to take effect only upon endorsement thereon."

On August 24, 1942, at the request of the insured, the beneficiary was changed from his mother to plaintiff, Mrs. Fannie Swygert, whose relationship in the application for change of beneficiary was described as "intended wife." The change was duly endorsed by the Company on the policy, which was shortly thereafter delivered to the plaintiff.

Plaintiff was a widow residing in Columbia and the insured was single. For some years prior to 1942, they had been going together and finally became engaged. The insured gave her an engagement ring. The engagement was broken about 1947. The plaintiff never returned the ring and gave it to her daughter. She kept the policy and testified that insured never asked her to return it but, on the contrary, two or three years prior to his death told her that he was paying the premiums and for her to keep the policy.

On August 31, 1948, the insured applied on a form furnished by the Company for a new certificate of insurance, in which he stated:

"I hereby declare that the above Policy has been lost or destroyed, and because of that fact I hereby apply for a Certificate of Insurance.

"I agree that should the original Policy be found that the Certificate of Insurance will be null and void, and that I will immediately return the Certificate of Insurance to the Company for cancellation."

A new certificate was duly issued and delivered to the insured. On June 27, 1949, insured applied on the prescribed form for a change of beneficiary from the plaintiff, Fannie Swygert, to one Lillian B. Adams. The requested change was made and endorsed on the back of the certificate. During February, 1954, he requested that the beneficiary be changed from Lillian B. Adams to Gertrude Hornsby, whom he had married. This change was likewise made by the Company and endorsed on the back of the certificate.

Plaintiff testified that four or five days after learning of the death of the insured, she called the Columbia office of the Durham Life Insurance Company and stated that the policy was in her possession. The person to whom she talked replied that he had a check on his desk for the amount of the policy which he was mailing to insured's wife, and requested plaintiff to mail the policy to him. She did not do so and was still in possession of the policy when this action was instituted. It is conceded that all premiums were paid by the insured.

It is now well established under our decisions that where a right to change the beneficiary has been reserved to the insured in the policy, the named beneficiary, during the lifetime of the insured, has not a vested right or interest but a mere expectancy, and the complete control of the policy remains in the insured. Davis v. Acacia Mutual Life Insurance Co., 177 S.C. 321, 181 S.E. 12; Shuler v. Equitable Life Assur. Soc. of United States, 184 S.C. 485, 193 S.E. 46. Although the beneficiary has only an inchoate right, the general rule is that unless waived, an insured in making a change of beneficiary must substantially comply with the method prescribed in the policy. Wannamaker v. Stroman, 167 S.C. 484, 166 S.E. 621; Wilkie v. Philadelphia Life Ins. Co., 187 S.C. 382, 197 S.E. 375. Of course, upon the death of the insured, the rights of the beneficiary become vested. Babb v. Paul Revere Life Ins. Co., 224 S.C. 1, 77 S.E.2d 267.

It is equally well settled that where, as here, in order to effect a change of beneficiary the policy must be delivered to the Company for endorsement, such requirement is primarily for the protection of the Company and may be waived by it during the lifetime of the insured. "The obvious purpose of the production of a policy and indorsement thereon of change of beneficiary is to evidence the consent of the insurer to a result accomplished at the request of the insured and to obviate the possibility of conflicting claims. * * * The insured, as one party to the contract, and the insurer, as the other, could waive indorsement on the policy of change of beneficiary." Quist v. Western & Southern Life Insurance Co., 219 Mich. 406, 189 N.W. 49, 50. In an extended annotation in 19 A.L.R.2d, at page 113, it is stated that "practically all courts seem to agree that if the insurer waives its right to insist on a compliance with the policy provisions as to change of beneficiary during the lifetime of the insured, the original beneficiary is not entitled to rely upon the failure of the insured to comply with the policy requirements for his or her protection." However, as shown in the foregoing annotation, most courts hold, and we think properly so, that after the death of the insured the rights of the beneficiary become fixed and that the company cannot thereafter by waiver or other act prejudice or divest the right of a beneficiary which became vested upon the death of the insured.

And it has been further held that the original beneficiary cannot complain because the company was induced to issue a new certificate or policy by false representation on the part of the insured that the original had been lost or misplaced. Witt v. John Hancock Mut. Life. Ins. Co., supra; Royal Union Mutual Life Insurance Co. v. Lloyd, supra; Alfama v. Rose, 323 Mass. 643, 83 N.E.2d 868, 869. In the last mentioned case the Court said: "On this record it is immaterial that the insured represented the certificate as lost when in fact the first beneficiary was withholding it from him." In Witt v. John Hancock Mut. Life Ins. Co., supra [246 App. Div. 614, 282 N.Y.S. 875], the Court stated: "The provision providing that a change of beneficiaries could only be accomplished with the consent of the company by an indorsement on the policies was one for the benefit of the insurer, which it could waive if it saw fit so to do. The fact that at a time when the policies had lapsed, such waiver was procured by a false representation that the policies were lost, made by the deceased to ...


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