Schroeder v. Springfield Fire & Marine Ins. , 51 S.C. 180 ( 1897 )

The opinion of the Court was delivered by

Mr. Justice Gary.

This is an action on a policy of fire insurance, in which the second paragraph of the complaint is as follows: “That on the 19th day of February, A. D. 1892, in consideration of the payment by the plaintiff to the defendant of $16.50, the defendants, by their agents, duly authorized thereto, made their policy of insurance in writing, and thereby insured the plaintiff against loss by fire for the term of one year, to the amount of $1,000, Upon all her household furniture,” &c. The principal defense relied upon by the defendant, and which involves the questions raised by the exceptions, is as follows: “That said policy of insurance contained a provision whereby the plaintiff covenanted and agreed, and it was stipulated by and between the parties thereto, that in case the assured shall thereafter, from the date of said policy, make any other insurance on the property thereby insured, without the consent of the company written thereon, then said policy should be void; and the defendant alleges that during the lifetime of said policy, to wit: on the day of , 1892, the plaintiff insured the property covered by the policy aforesaid, for the sum of $1,000, in the Greenwich Insurance Company, without the knowledge or consent of the defendant written on said policy, or'of its agents; and by reason thereof the said policy of insurance issued by this defendant to the plaintiff became null and void, and said plaintiff cannot now maintain an action thereon.” The policy of insurance contained the following provisions: “No other concurrent insurance permitted * * * that this company shall not be liable until the actual payment of the premium * * * if the assured shall have or shall hereafter make any other insurance * * * without the consent of the company written hereon * * * then and in every such case this policy shall be void * * * nor shall the assured be entitled to recover of this company'any greater proportion of the loss or damage than the amount hereby insured bears to the whole sum insured on said property, whether such other insurance be by specific or by general or floating policies. * * * And it is further expressly covenanted by the parties hereto that no officer, agent or representative of this company shall be held to have waived any of the terms and conditions of this policy, unless such waiver shall be indorsed hereon in writing. * ’* * This policy is made and accepted on the above express conditions.” * * *

After the plaintiff closed her testimony, the defendant made a motion for a nonsuit. The following appears in the case: “The plaintiff’s counsel here announced that they rested, but immediately after such announcement they said to the Court that they desired to recall Mr. Meares, to prove that at the time Mr. Allen says he paid the amount of the premium to Chase & Sons, who were the local agents of the defendants, such agents had been informed that Commander had issued the Greenwich policy to the plaintiff.”

The Court: “I have already ruled that, under the case presented before the Court, that such testimony is incompetent, and that, so far as the testimony goes, the only way to show waiver would be by compliance with the terms of the policy, there being no other grounds disclosed by the evidence or suggested by counsel, other than the simple offer to show knowledge of the local agents of the taking out of another policy upon the same property. I cannot see, if the agent chose to take the risk himself of accounting for the premium to the company, and to indulge the person taking out the policy upon his individual account, how that binds the company in any way. If he delivers the policy without taking the money, he does so at his own risk, and it is the agent’s own indulgence and not that of the company. I am, therefore, compelled to rule that the proposed testimony of Mr. Meares, objected to, is incompetent.”

Plaintiff’s counsel then announced that they rested their case. The defendant’s counsel thereupon asked plaintiff’s counsel if they had any further evidence to offer upon the question of waiver; that if they did not, the defendant would offer no testimony. Plaintiff’s counsel not replying, the defendant’s counsel stated that the proof being undisputed, and it appearing by the plaintiff’s own evidence that the conditions of the policy had been broken, and that under the terms no action could be sustained, therefore, submitted that a nonsuit should be granted, or that the jury be directed to find a verdict for the defendant.

The Court: “What have you to say on that point, Mr. Thompson?”

Plaintiff’s counsel: “We refer your Honor, to the case of Copeland v. Western Insurance Co., in which the facts were similar, except in that case the iron safe clause was involved. A motion of nonsuit was granted by Judge Townsend. The nonsuit was reversed by the Supreme Court on the ground that the plaintiff should have been given an opportunity to reply. We wish to put the plaintiff on the stand, if the defendant has closed.”

Mr. Abney: “You can do so now.”

The plaintiff declined.

Thereupon Mr. Abney stated that he had no evidence to offer, and asked that a nonsuit be granted.

The Court: “It strikes me that there is no testimony here which would warrant the jury in finding for the plaintiff, and I will, therefore, grant your motion for a nonsuit.”

The plaintiff appealed upon exceptions which will be set out in the report of the case.

The exceptions will not be considered seriatim, as they raise practically the single question, whether there was any testimony offered or introduced tending to prove waiver, relative to concurrent insurance. If there was no waiver on the part of tlie defendant, as to that provision of the policy which rendered it inoperative until actual payment of the premium of insurance, then it must be regarded as having been issued at the time the premium was achtally paid. The plaintiff offered to introduce testimony for the purpose of showing that, at that time, the agent of the defendant had knowledge that there was other insurance on the property. Such knowledge would prevent the company from setting up, as a defense, that there was other insurance on the property when the premium was paid. Graham v. Ins. Co., 48 S. C., 195. Equity and good conscience would not, under such circumstances, permit the company to take a premium of insurance and then claim that the policy was a nullity. After”the defendant received notice of the fire, through the proofs of loss furnished by the plaintiff, it does not appear from the testimony that it offered to return the premium of insurance, and this was a fact tending to show waiver, and, therefore, properly for the consideration of the jury. It may be argued that the company waived the right to insist upon the requirement of the policy as to actual payment of the premium, but no testimony was introduced to show such waiver; and even if testimony had been introduced to prove this fact, it would have been for the consideration of the jury and not of the Court. It is true, the complaint alleges that the insurance was effected when the policy was delivered, and this fact is admitted in the answer; but even if it should be held that the defendant waived the right to insist upon the requirement of the policy as to the actual payment of the premium, still the offer to show by the testimony that, when the premium of insurance was paid, the agent of the defendant had notice that there was other insurance, and the failure of the defendant to show that it offered to return the premium of insurance after receiving notice of the fire, through the proofs of loss furnished by the plaintiff, were facts for the consideration of the jury in determining the question of waiver. The presiding Judge was in error in excluding the testimony of Mr. Meares, and in granting the order of nonsuit.

The order of nonsuit is, therefore, set aside and the case remanded to the Circuit Court for a new trial.