Lawton-Gillespie Co. v. Amer. Cent. Ins. Co. , 104 S.C. 412 ( 1916 )

June 30, 1916. The opinion of the Court was delivered by This is an action on policy of fire insurance. The defendant admitted in the answer that it had issued the policy, but claimed that previous to the fire the plaintiff surrendered the policy and by agreement between the authorized agents of the plaintiff and defendant the policy was surrendered and canceled; that after the fire the agents of the plaintiff called on the agents of the defendant and asked to be allowed to inspect the policy; that when the agent of the plaintiff got possession of the policy, they erased the cancellation and kept possession of the policy. The defendant alleged fraud in regard to the transaction. The plaintiff replied that the policy had been left in the office of the agents of the defendant by mistake, and denied the agreement to cancel. The plaintiff put the case on calendar one for trial. The defendant moved to transfer the case to calendar two for trial by the Court. This motion was refused, and from the order refusing the motion, this appeal is taken.

The case of Fludd v. Equitable Life Assurance Societyof United States, 75 S.C. 315, 55 S.E. 762, was a suit on an insurance policy. By its answer the defendant set up fraud in procuring the policy, and asked for cancellation. This Court said it could be tried before a jury on calendar No. 1. In the case at bar the plea is that the policy has already been canceled by the act of the parties. His Honor did not err. The issues are purely legal. This case presents no demand for cancellation or reformation. The Fludd case, supra, is conclusive of this.

The judgment is affirmed.

A petition for a rehearing being filed July 17, 1916, the following order was made