Watson v. American Equitable Assur. Co.

• Citation: 12 S.E.2d 30,195 S.C. 463
• Decision Date: 04 December 1940
• Docket Number: 15175.
• Parties: WATSON v. AMERICAN EQUITABLE ASSUR. CO. et al.
• Court: United States State Supreme Court of South Carolina

12 S.E.2d 30

195 S.C. 463

WATSON v. AMERICAN EQUITABLE ASSUR. CO. et al.

No. 15175.

Supreme Court of South Carolina

December 4, 1940

George D. Levy and Shepard K. Nash, both of Sumter, for appellant.

M M. Weinberg, of Sumter, and Joseph L. Nettles, of Columbia for respondents.

STUKES Justice.

It is alleged in the complaint in this action for damages that the first-named respondent, hereinafter for convenience referred to as the Company, is a foreign fire insurance corporation licensed to do business in this state and having an office and agent for that purpose in Sumter County; that the second-named respondent, hereinafter for convenience referred to as the Underwriters, is an association of fire insurance companies, also engaged in business in this state through an agent or agents, conducting investigations for its members and that the Company is a member of the Underwriters; and that the Company issued several fire insurance policies to a Mrs. Chandler and the defendants sent their agent, one Dreibelbis, from his place of residence in Pennsylvania to Sumter to investigate the loss under the policies. It is further alleged that after making such investigation respondents' agent, Dreibelbis, charged the plaintiff and his sons with having burned the property and upon resentment thereof by the appellant, Dreibelbis, while acting in the scope of his authority as agent of the respondents, assaulted appellant and inflicted injuries necessitating medical attention.

The answer of the Company contains a general denial restricted by the other allegations which are in substance that Mrs Chandler's loss under her policies with it had been adjusted and paid; denied that Dreibelbis was its agent in any capacity, but was the representative of a national organization whose business it is to investigate on its own responsibility insured and uninsured fire losses; that any injury received by appellant was in a fisticuff with Dreibelbis when the latter was not acting for the Company, but for himself in self-defense in the difficulty which was caused, provoked and started by the appellant; and finally that the Company neither exercised nor had any authority or control over the acts of Dreibelbis or the Underwriters.

The latter's answer contains a general denial qualified by allegations that it is an unincorporated association, its members being certain insurance companies, one of which is the Company here involved, and one of its functions is the investigation of fires, whether or not there is insurance, for the purpose of benefiting the general public; that it sent Dreibelbis to Sumter for the purpose of investigating the Chandler fire, which loss has been adjusted and paid; and that appellant's injuries resulted from a general fisticuff between him and Dreibelbis who was not acting for the Underwriters but solely for himself in self-defense in the difficulty which was caused, provoked and started entirely by the appellant.

After the testimony was in respondents moved for a directed verdict in their favor upon the grounds that the evidence was "undisputed and points only to the conclusion that neither of the defendants can be liable because,

"(1) Dreibelbis was not acting as the agent of either of the defendants at the time of the altercation, nor was he acting within the scope of his authority:" (a) if the altercation was caused by language used by the appellant it admittedly related only to the Chandler loss and applied to Dreibelbis personally; (b) appellant's language which brought about the altercation was used by him solely against Dreibelbis personally; (c) the Chandler loss had been entirely closed and defendants were not liable for an altercation relating thereto; and (d) that it was undisputed that the only loss which Dreibelbis was investigating at the time was that of the appellant which occurred three weeks subsequent to the closing of the Chandler loss, and respondents were only exercising their legal rights in investigating appellant's loss by making full inquiry of him, and there is no testimony of any language used by Dreibelbis relating to the investigation of appellant's loss which was improper or which, in fact, caused the altercation; and finally, (2) that "the only reasonable construction to be put upon the testimony is that for some reason the plaintiff himself used opprobrious language which could only bring about an altercation in all of the circumstances of this case and that Dreibelbis had every right to defend himself; therefore, the defendants could not be held liable for his acts in that connection."

After argument the trial Judge sustained the ground numbered (1) above and directed the verdict for the respondents, stating that there was no distinction between them (the respondents) and further stating that he had not considered ground (2) because it related to an aspect of the testimony which might be determined by the jury. Further explanation of the Court of the ruling was to the effect that there was no proof that Dreibelbis, respondents' investigator, was acting within the scope of his authority at the time of the difficulty because it appeared conclusively that the investigation of the Chandler loss had been concluded at the time of the difficulty and that the agent's authority thereabout was ended by his report; and that he was then investigating the appellant's fire. As to the contention of counsel that Dreibelbis was continuing the Chandler investigation in connection with that of appellant's fire the Court said: "There might be something to infer from that but it is only an inference. I see no dependable testimony before the Court of that, and that being the case, the Court could not recognize it to the extent of submitting it to the jury to assess damages against the Company for Dreibelbis' act in the Watson case and tie it up with the Chandler case, in order to make them liable for something that might have happened with respect to the Chandler case"; and continued as follows:

"It is true that there may be testimony in the case going to show that during a conflict with Watson, according to Watson's Statement, that the Chandler case was mentioned, but nevertheless the testimony is that at that time he was investigating the Watson case, the scope of his authority was to ascertain, at the time he was having the conversation with Watson, how the Watson fire originated and not the Chandler fire. I see nothing dependable to tie the two together. And besides, under the terms of the policy in the Chandler case, which is the only one we have before us, the insurer had the right to investigate the manner in which this fire originated, to see whether or not it was one for which they were liable...