The opinion of the court was delivered by: Legge, Justice.
The beneficiary of a policy of life insurance in the face amount of $200.00, sues the insurer in this action for
$3,000.00 actual and punitive damages. The defendant appeals from an order: (1) construing the complaint as setting forth a cause of action for fraudulent breach of the contract of insurance, and (2) refusing to strike certain of its allegations.
Following are, in substance, the allegations of the complaint, those to which the motion to strike was directed being italicized:
1. Formal allegations as to the defendant's business.
2. That the plaintiff is an aged and ignorant Negress.
3. That the defendant's agent having visited plaintiff's residence and solicited an application for insurance on the life of Chester Blackmon (plaintiff's adult son), the defendant issued a policy on his life in the amount of $200.00, the plaintiff being named as beneficiary; that thereafter the defendant's agents collected the weekly premiums from the plaintiff at her residence; and that the insured died on October 28, 1957, the policy being then in force.
5. "That the acts and conduct of the defendant company and its agents as above set forth were fraudulent, intentional, willful and unlawful and to the damage of the plaintiff in the sum of Three Thousand ($3,000.00) Dollars actual and punitive."
Prayer was for judgment in the sum of $3,000.00 "actual and punitive damages."
In reviewing Judge Lewis' order so far as it relates to construction of the complaint we must, as he did, base our decision solely upon the allegations of the complaint itself. It is true that the notice of the two motions (to construe and to strike) declared that they would be based upon the complaint, the answer, the policy and the application therefor, the "death papers," and the defendant's check in the amount of $149.30 referred to in the complaint; but, except for the complaint itself, these documents relate to defense and are not appropriate to consideration of the motions in question. They are in no sense a part of the complaint.
Breach of contract, however fraudulent the intent impelling or accompanying it, does not of itself give rise to a cause of action for punitive damages. Smyth v. Fleischmann, 214 S.C. 263, 52 S.E.2d 199; Hardee v. Penn Mutual Life Ins. Co. of Philadelphia, 215 S.C. 1, 53 S.E.2d 861. But since Welborn v. Dixon, 70 S.C. 108, 49 S.E. 232, 3 Ann. Cas. 407, this court has adhered to the rule that breach of contract committed with fraudulent intent and accompanied by a fraudulent act will entail liability for punitive as well as actual damages. And it may be considered as settled law in this state that the retention by a life insurance company of a policy and premium receipt book obtained from the insured or the beneficiary by fraudulent representations of the company's agent is a fraudulent act within the meaning of the rule. Bradley v. Metropolitan Life Ins. Co., 162 S.C. 303, 160 S.E. 721; Derrick v. North Carolina Mutual Life Ins. Co., 167 S.C. 434, 166 S.E. 502; Henderson v. Capital Life & Health Ins. Co., 199 S.C. 100, 18 S.E.2d 605. An excellent review of our cases bearing on the rule above mentioned is to be found in South Carolina Law Quarterly, Vol. 10, No. 3 (1958), pp. 444-484.