The opinion of the court was delivered by: Moss, Justice.
The Equitable Life Assurance Society of the United States, the respondent herein, did, on August 18, 1955, issue and deliver to Sav-Way Food Stores, Inc., and Associates, a group accidental death and dismemberment Policy of Insurance, No. 51869D, which included the employees of Merchants Produce Co., an associate of Sav-Way Food Stores, Inc. R.H. Waltz was insured under the group policy and was issued an individual certificate effective May 21, 1955, by the terms of which it was provided that if the insured should lose his life by reason of bodily injuries caused directly and exclusively by external violent and accidental means, his beneficiary, Pearl F. Waltz, the appellant herein, would be paid the sum of $1,000.00, subject to the limitations and provisions set forth in the master policy delivered to the insured's employer. It is an admitted fact that the insured died on December 29, 1955, as a result of gunshot wounds.
This action was instituted by Pearl F. Waltz, the appellant herein, who is the designated beneficiary in the accidental death and dismemberment policy issued to the insured. The complaint alleged the issuance of the contract of insurance hereinbefore referred to. It alleged the accidental death of the insured.
The respondent, by its answer, admitted the execution and delivery of the group policy providing for insurance against accidental death of all eligible employees of Merchants Produce Co. and that R.H. Waltz, an employee thereof, had elected to participate in the group insurance, and that there was issued to him its individual group accidental death and dismemberment Certificate No. 51869D-11, subject to the terms of the certificate and the group policy.
The respondent also asserted that at the time of the death of R.H. Waltz his employment with Merchants Produce Co. had been terminated. This defense was based upon the following provision of the policy:
"The insurance hereunder of any employee shall cease automatically upon the occurrence of any of the following events:
"(3) the termination of his employment in the classes of employees insured hereunder. Cessation of active work by an employee shall be deemed to constitute the termination of his employment except that, subject to the continuance of the payment of premiums for the insurance hereunder.
"(b) An employee temporarily laid off or given leave of absence will be regarded as still in the employment of the Employer for the full period of such lay-off or leave of absence but not exceeding a maximum period of three months."
The answer alleges that the employment of R.H. Waltz by Merchants Produce Co. terminated on December 22, 1955, and that his death occurred on December 29, 1955, after the termination of his employment with Merchants Produce Co., and hence, there was no liability under the policy, even if the insured died of accidental injuries.
This case was tried before the Honorable J. Woodrow Lewis and a jury at the 1957 October Term of the Court of Common Pleas for Orangeburg County, South Carolina, and resulted in a directed verdict in favor of the respondent. The appellant made a motion for a new trial, which was overruled. The case is before this Court upon due notice of intention to appeal. The thirteen exceptions raise for determination four questions. (1) Was it error to direct a verdict for the Insurance Company? (2) Was there any evidence of waiver or estoppel on the part of the respondent requiring the submission of this issue to the jury? (3) Did the trial Judge commit error in excluding from evidence a notice of the death of the insured given by his employer under a life policy? (4) Did the trial Judge commit error in not considering the effect of certain South Carolina statutes?
It becomes unnecessary for us to decide the question of the burden of proof because the Circuit Judge directed a verdict for the respondent on the ground that from all of the evidence it appeared conclusively that the deceased was not in the employ of Merchants Produce Co. on the date of his death, and hence, the accidental death and dismemberment insurance which he had while an employee had terminated under the terms of the group policy. In directing a verdict for the respondent, the Circuit Judge said:
"The testimony in this case, in my view of the matter, leaves no issue for the jury to determine as to whether the deceased was on December 29th, 1955 in the employ of his employer. He was on December 22nd, by the testimony, arrested for misappropriating property or funds of his employer. On that date he returned some $1,900.00 funds found on his person at the time of his arrest, returned to the employer. Immediately the employer changed the locks on his buildings so as to make ineffective the keys that were in possession of the deceased.
"It is uncontradicted by any testimony of any probative value that the deceased did not work for his employer after December 22d 1955. It is uncontradicted that the deceased was not paid any wages after December 22d 1955.
"The facts and circumstances in evidence leave no doubt in my mind that there is no testimony, no issue to submit to the jury as to whether the deceased was employed on December 29th, 1955, the date of his death. The testimony in my opinion ...