The opinion of the court was delivered by: Legge, Justice.
August 5, 1957.
James T. Bowling died on February 3, 1954, of injuries sustained in an accident on the night of January 23, 1954. This action was brought by his minor son to recover as beneficiary of a policy of insurance on his father's life, which policy he alleged had been purchased from the defendant by the said James T. Bowling. The complaint, after formal allegations, was as follows:
"3. That on the 18th day of January, 1954, the defendant above named, through one of its duly authorized agents and employees acting in the course of his employment, approached plaintiff's father, the said James T. Bowling, and induced plaintiff's intestate to purchase from defendant a policy of insurance on his life with a death benefit of Five Hundred Dollars ($500.00), or a death benefit of One Thousand Dollars ($1,000.00) in the event death occurred as a result of an accident, the plaintiff herein being the designated beneficiary; that plaintiff's intestate, on the 23rd day of January, 1954, paid to defendant through its duly authorized agent or employee, acting within the scope of his duties and the course of his employment, the required premium for said protection in the amount above set forth.
"4. The plaintiff is informed and believes that subsequently thereto, to wit: on the 3rd day of February, 1954, plaintiff's intestate died as a result of an accident, whereupon defendant became indebted to plaintiff in the amount of One Thousand Dollars ($1,000.00) demand for payment of the same having been made and either refused or neglected.
"Wherefore plaintiff prays judgment against defendant for the sum of One Thousand Dollars ($1,000.00) with interest thereon at the legal rate, together with the costs of his action."
In its answer, the defendant denied coverage, alleging: that the application for the policy, given by James T. Bowling to defendant's agent on January 18, 1954, expressly provided that the policy, if issued, should "become effective if the life proposed is alive and in sound health at date of policy"; that on January 23, 1954, when the agent accepted from Bowling the agreed weekly premium, fifty-six cents, the receipt given to Bowling therefor expressly provided that it was "subject to conditions and limitations as expressed in policy or policies on which above payment has been made,"; that one of the conditions of the policy for which application was made was that it should take effect on the date of its issuance "provided the insured is then alive and in sound health"; that the accident that caused the death of the said James T. Bowling occurred on January 23, 1954, the same date on which he had paid the initial premium, and before acceptance or rejection of the application for insurance; that Bowling was never in sound health after January 23, 1954; that no policy on his life was issued or delivered; and that it was, therefore, liable only for the return of the premium paid, its tender of which had been refused.
In the course of the trial in January, 1956, testimony was admitted over the defendant's objection to it as incompetent, to the effect that the defendant's agent had told Bowling, at the time of his payment of the initial premium, that the policy thereupon became immediately in force. Timely motion for nonsuit was made and refused. At the conclusion of all of the testimony the trial judge, upon motion of the defendant, struck the testimony before mentioned and directed a verdict for the plaintiff in the amount of fifty-six cents. Thereafter, the plaintiff having moved for a new trial upon the ground that the court had erred in striking this testimony, the trial judge concluded that he had committed error in that regard, and by order dated April 3, 1956, he granted the motion, stating therein that he was doing so on legal, as distinguished from discretionary, grounds. From that order the defendant has appealed.
The five exceptions charge error:
1. In admitting the testimony before mentioned (Exceptions II and III);
2. In not holding that the policy was never in force because the insured was not in sound health at any time when it could have been issued (Exceptions IV); and
3. In holding that the receipt given by the agent on January 23, 1954, was a binding one making the policy effective on that date (Exceptions I and V).
Except so far as concerns the testimony before referred to, there is no real dispute as to the facts, which were substantially as follows:
James T. Bowling, aged thirty-one, was employed in a barber shop as porter and bootblack. On Monday, January 18, 1954, Mr. John Weldon, the defendant's agent, solicited him for a policy of insurance, and thereupon Bowling signed an application therefor which Mr. Weldon had filled out from information then given him by Bowling. This application, which was introduced in evidence by the plaintiff, shows the amount of insurance applied for to be $500.00, under Plan 522, and the premium fifty-six cents, and designates Timothy M. Bowling, aged five years, son of the applicant, as beneficiary. Immediately above Bowling's signature are the following words: "I declare that the above answers are materially true and are representations made by me as a basis for the issuance of a policy of insurance on the life proposed. Such policy if issued to become effective if the life proposed is alive and in sound health at date of policy".
Bowling did not pay the premium at that time, stating that he would not have the money until the following Saturday (January 23), and asked the agent to come back then to get it. Mr. Weldon accordingly held the application until the morning of January 23, when, having collected the premium from Bowling and given him the receipt hereinafter mentioned, he turned the application in to Mr. Harper, the manager of defendant's Greenville office. Introduced in evidence by the plaintiff was the receipt given to Bowling at the time of his payment of the premium, reading as follows:
"Field Receipt (Weekly Premium)
"Received of James T. Bowling ............. Dollars 56 cents on Policy Nos. on new policy subject to conditions and limitation as expressed in policy or policies on which above payment has been made.
"Date of last premium ..............
"Debit No. 4454 Palmetto State Life ...