Lower Main St. Bk. v. Caledonian Ins. Co.

June 9, 1926. The opinion of the Court was delivered by L.T. Lester, Jr., as owner of an automobile, and Lower Main Street Bank, as the holder of a mortgage covering the automobile, as plaintiffs, brought suit against the defendant on a policy insuring the automobile against theft and fire. The defendant set up the defense that the policy of insurance, involved in the action, contained the provision excepting "theft * * * by any person or persons * * * in the assured's service or employment, whether such theft * * * occurred during the hours of such employment or not," and denied that the property insured was stolen by any one not in the employ of the plaintiff Lester, and further denied that the loss of the property was covered by the policy of insurance. The trial of the cause was in the County Court of Richland County. There was a motion on the part of the defendant for a directed verdict in its favor, on the ground that the evidence was conclusive that an employee of Lester, one of the plaintiffs, stole the property in question, and that the theft by such employee was a risk not assumed by the defendant under the terms of the policy. This motion was refused. The verdict of the jury was in favor of the plaintiffs for the full amount claimed in their complaint. From the verdict and the judgment entered thereupon, the defendant has appealed. The sole ground of appeal is that the County Judge erred in overruling the motion for a directed verdict.

The testimony of the plaintiff Lester, as shown in the record which comes to this Court, discloses the fact that at various times he said things and did things tending to establish that the car was stolen by his employee, but in his testimony he also said that Gore was an employee of a corporation by which Lester was also employed. The well-established rule in this State is that if there is any testimony whatever to go to the jury on an issue involved in a cause, or even if more than one inference can be drawn from the testimony, then it is the duty of the Judge to submit the cause to the jury. This is true, even if witnesses for the plaintiff contradict each other, or if a witness himself in his testimony makes conflicting statements. The credibility of witnesses is entirely for the jury. On a motion for a directed verdict, the evidence in the cause must be considered most favorably to the plaintiff. Andersonv. Hampton Branchville Railroad Lumber Co. (S.C.), 132 S.E., 47. Creus v. Sweet, 125 S.C. 306;118 S.E., 613; 29 A.L.R., 43. Richardson v. N.W.Railroad Co., 124 S.C. 326; 117 S.E., 510. State v.Parris, 89 S.C. 143; 71 S.E., 808.

The exception is overruled, and the judgment of the County Court of Richland County is affirmed.

MESSRS. JUSTICES WATTS and STABLER concur.

MR. JUSTICE COTHRAN and MR. ACTING ASSOCIATE JUSTICE R.O. PURDY dissent.

MR. CHIEF JUSTICE GARY did not participate.