Rowell v. Fireman's Insurance Co.

December 21, 1927. The opinion of the Court was delivered by On May 25, 1925, the defendant company issued to the plaintiff a fire insurance policy covering her dwelling house in the Town of Norway, in the sum of $1,500, and her household goods in the sum of $500. The policy stated the value of the house to be $2,500, and contained the following condition:

"Unless otherwise provided by agreement in writing, added hereto, this company shall not be liable for loss or damage occurring while the insured shall have any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy."

On October 17, 1925, plaintiff obtained additional insurance on the same property in another company, to the amount of $1,750 on the building and 500 on the household goods. On March 25, 1926, her house and household goods were totally destroyed by fire. The defendant, after receiving notice of the fire and proof of plaintiff's loss, denied all liability, claiming that plaintiff had violated the condition of the policy above referred to, and offered her a check for the amount of the premium which she had paid the company. She declined to accept the check and brought this action for recovery on the policy.

The complaint is in proper form. Defendant by its answer denied liability, setting up as a defense that plaintiff had procured, without its knowledge and consent, additional insurance on the same property, in violation of the condition of the policy.

The case came on for trial in the County Court for Orangeburg County, before his Honor Judge Moss and a jury. When the plaintiff had rested her case, the defendant moved for a directed verdict on the ground that the testimony showed that she had procured other insurance, without the knowledge or consent of the company, upon both items of the property covered by the policy issued her by the defendant, and that there was no testimony tending to show waiver on the part of the company to stand upon the condition named in the policy. The Court granted the motion.

The plaintiff now comes to this Court, the appeal presenting but a single question for our consideration: Did the trial Judge commit error in holding that there was no evidence of waiver by the defendant of the violation by plaintiff of the condition of the policy against other insurance, and in directing a verdict for the defendant?

The answer to this question requires an examination of the testimony. There were only two witnesses, the appellant and her son-in-law. The testimony of Fickling, the son-in-law, in the main tended to show that he handled appellant's business for her during her illness; that respondent's agent, Able, called to see the witness several times after the fire; that he asked to see the title to the land, which was shown him; that they talked the matter over, and the agent told him if there was anything he could do he would be glad to do it. The testimony of the appellant tended to show that Able, the agent of the respondent's company at Norway, wrote the policy of insurance; that afterwards he saw her on the streets and told her the best thing for her to do was to take out some more insurance, and that he spoke to her about this a number of times; that later she took out additional insurance in the Globe Rutgers Fire Insurance Company, through the Watson agency; and that subsequently her house and household goods were totally destroyed by fire. After further testimony elicited from the witness by her counsel, she was asked this one question on cross-examination: "Did you state that you had a policy on this same property with Mr. Watson's agency here in Orangeburg?" to which she answered, "Yes, sir." On redirect examination, immediately following, she testified as follows:

"Q. You took that policy out after Mr. Able told you that you had better get more insurance? A. Yes, sir.

"Q. Do you recall whether he came back and asked you had you gotten other insurance? A. Yes, sir.

"Q. You said that, too? A. Yes, sir."

On argument in this Court, counsel for appellant and counsel for respondent could not agree as to the real significance of this testimony. Counsel for respondent contended that it established nothing except that appellant had procured additional insurance on the same property with the Watson agency in Orangeburg, while appellant's counsel insisted that it established the fact that appellant had stated or said to respondent's agent, Able, when he asked her whether she had gotten other insurance, that she had done so.

It was not disputed that the respondent's agent saw the appellant a number of times after she had procured the insurance in his company, and suggested that she take out additional insurance on her house and household goods. It is reasonable, of course, to suppose that the agent expected any such additional insurance to be taken in his company. However, it is not clear that the appellant so understood him. It is clear that, in line with his suggestion, she procured additional insurance.

On argument of the appeal in this Court, counsel for the respondent, with his usual candor, conceded that if the insured, as claimed by the appellant gave notice to the company through its duly accredited agent that she had taken out additional insurance, and the company did nothing about the matter until after the property was destroyed by fire some time later, this would be some evidence to go to the jury of waiver of the forfeiture, but contended that no such notice was given.

It is true that the testimony is meager and not altogether clear on the point in dispute, but we think that from the testimony quoted, when taken in connection with other testimony of the case, a reasonable inference may be drawn that the appellant said or stated to respondent's agent that, following his suggestion, she had taken out other insurance on the property — which, if the company failed to act upon such alleged knowledge before the destruction of the property by fire some time later, would be some evidence of waiver on its part of the violation by the insured of the condition of the policy.

If more than one inference can be drawn from the testimony, a question of fact is made for the jury.Rogers v. Insurance Co., 135 S.C. 89;133 S.E., 215; 45 A.L.R., 1172. Hollings v. Bankers' Union, 63 S.C. 197;41 S.E., 90.

In Allen v. Insurance Co., 139 S.C. 41; 137 S.E., 214, the Court said:

"Even though no one of the facts is sufficient in itself to warrant an inference of waiver, yet if, taken together, they tend to produce that result, then there is no error in submitting that question to the jury" (citing Cope v. InsuranceCo., 134 S.C. 532; 133 S.E., 440. Clark v. InsuranceCo., 101 S.C. 249; 85 S.E., 407).

McCarty v. Piedmont Insurance Co., 81 S.C. 152;62 S.E., 1; 18 L.R.A. (N.S.), 729, and Feagin v. Royal InsuranceCo., 122 S.C. 532; 115 S.E., 808, relied upon by the respondent, are not in point. In the McCarty case, the Court held that:

"The mere declaration of intention to do something in the future with respect to a contract not in existence cannot be the basis of a waiver or estoppel to assert a condition of the subsequently executed contract."

The Feagin case was decided on the ground that the testimony showed that the person to whom the alleged notice of intention to take out additional insurance was given by the insured was not at the time an agent of the company, but the Court added:

"Even if Briggs was the agent of the company at the time of the inspection and was told by the plaintiff that he intended to take out additional insurance, that would not have relieved the forfeiture."

No such question, however, is involved in the present case, since here the notice given, if any, was one not of intention to take out additional insurance, but that additional insurance had already been actually taken out.

The judgment below is reversed and the case remanded for a new trial.

MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE and CARTER concur.