Little v. Knights of Pythias , 96 S.C. 448 ( 1914 )

March 18, 1914. The opinion of the Court was delivered by This is an action upon a policy of insurance.

The complaint alleges, that on or about the — day of January, 1905, the defendant issued its policy of insurance on the life of W.A. Key, whereby it agreed to pay to his widow, legal heirs or representatives, the sum of three hundred dollars, should his death occur during his fourth year's membership.

That W.A. Key died on the 25th of October, 1908, in good standing.

That the plaintiff, Susan Duncan Key, is the widow of the said W.A. Key, and is entitled as such, to the sum of three hundred dollars.

The defendant, in its answer, denied the allegations that W.A. Key died in good standing in said lodge, during his fourth year's membership therein; and, by way of defense, alleged, that section 7 of the Endowment Law provides, that "any member living in a state of concubinage at the time of death, shall not be entitled to any of the benefits herein mentioned;" and that the deceased, at the time of his death, was living in a state of concubinage with a woman whom he represented as his wife, although he then had a lawful wife.

The jury rendered a verdict in favor of the plaintiff, for the sum of $300.00 interest and costs, and the defendant appealed upon exceptions, which will be reported.

The first question that will be considered is, whether there was error in refusing the motion for nonsuit.

The grounds of the motion and the reasons assigned by his Honor, the presiding Judge, for refusing it, are as follows:

"Mr. Edmunds: We move for a nonsuit. The undisputed testimony shows but one conclusion, that is, that the party through whom the benefit is claimed, W.A. Key, was, at the time of his death, living in a state of concubinage, in violation of section 7 of the Endowment Law, which we have put in evidence.

"The Court: Here is a letter from Henry, office of Grand Chancellor, Grand Lodge, Knights of Pythias, to Mr. Cobb: `Dear Sir: Replying to yours of the 11th inst., relative to the claim of the late W.A. Key, beg to advise that we have found the lawful wife of said member, and have informed her what steps to take as his widow, in order to collect the claim; when she complies with instructions, claim will be paid.'

"When the Grand Lodge met in Beaufort, here is what took place — I only read that part of the message that refers to this claim — `Claim No. A.W.A. Key, of Columbia Lodge No. 11., Columbia. Amount $300.00. Claims for the above sum have been presented by two wives, both claiming to have been the legal wife of the deceased. After a thorough investigation it was learned, that said member was lawfully married to Susan Duncan at Barnwell, S.C. April 13, 1892, and the second contract entered into in Columbia, S.C. April 23, 1902. Under the laws of South Carolina, the second marriage is void for the reason that the first wife is yet alive. The first wife, Susan Key, by name, has been directed to secure letters of administration from the judge of probate of Richland county in behalf of herself and children, and when she complies with instructions claim will be paid.'

"That message was referred to a committee, and that committee reported: `The committee on grand chancellor's report begs leave to make the following report: We have examined carefully the report, and wish to commend it for the comprehensive manner in which the affairs of the order for the past year has been put before us,' and recommends, etc.

"Now, that will be a fact for the jury to pass on, whether they waived a strict compliance on the part of the deceased in that particular.

"Mr. Edmunds: The evidence shows she did not comply with any instruction given her, and set out in the report.

"The Court: The matter was brought to the attention of the Grand Lodge in that paper, and in that report he was commended."

For the reasons just stated, the motion for nonsuit was properly refused, and the exceptions raising this question are overruled.

The other exceptions are also overruled, for the reason that they do not assign any prejudicial error.

Judgment affirmed.

MR. JUSTICE WATTS, disqualified.