133 S.E. 29 (S.C. 1926), 11974, Hartford Fire Ins. Co. v. Garvin

Docket Nº:11974.
Citation:133 S.E. 29, 136 S.C. 307
Opinion Judge:MARION, A. A. J.
Party Name:HARTFORD FIRE INS. CO. v. GARVIN et al.
Attorney:T. R. Morgan, of Aiken, for appellant. Williams, Croft & Busbee, of Aiken, for respondents.
Case Date:May 06, 1926
Court:Supreme Court of South Carolina
 
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Page 29

133 S.E. 29 (S.C. 1926)

136 S.C. 307

HARTFORD FIRE INS. CO.

v.

GARVIN et al.

No. 11974.

Supreme Court of South Carolina

May 6, 1926

Appeal from Common Pleas Circuit Court of Aiken County; W. H. Townsend, Judge.

Action by the Hartford Fire Insurance Company against R. D. Garvin and another. Judgment of nonsuit, and plaintiff appeals. Reversed, and new trial granted.

T. R. Morgan, of Aiken, for appellant.

Williams, Croft & Busbee, of Aiken, for respondents.

MARION, A. A. J.

This was an action commenced on July 5, 1923, on two promissory notes alleged to have been given in payment of a policy of fire insurance. One of the notes was for the sum of $45.13 and the other for the sum of $180.52. The circuit judge granted an order of nonsuit, and plaintiff has appealed. The terms and provisions of these notes appear [136 S.C. 309] to be identical with those involved in Hartford Fire Insurance Co. v. Young, 132 S. C., 34, 129 S.E. 129; Hartford Fire Insurance Co. v. Etheredge, 132 S.C. 488, 129 S.E. 428; and Hartford Fire Ins. Co. v. Brown et al., 133 S.C. 17, 130 S.E. 62.

The substantial question raised by the appeal is whether the circuit judge committed error in granting nonsuit. The grounds for that ruling are thus stated by the trial judge:

"I think that the application and notes show that they contemplated the issuance of a policy, and that is what the parties had in mind, and the party whose duty it was to issue the policy must show that they issued it before they can claim payment on the note, and they have not done it. The nonsuit is granted for that reason."

The construction thus given the application and notes was in accord with the view of this court as expressed in Hartford Fire Insurance Co. v. Young, supra, as follows:

"The evidence is susceptible of no other reasonable inference than that the application and the notes executed by defendant constituted a mere offer to contract, or order, for an insurance policy which was subsequently to be issued and delivered to defendant if the offer of defendant was approved and accepted by the insurance company."

But in the view that there was no evidence tending to establish that the policy had been issued in this case we find ourselves unable to concur. There was evidence tending to establish: That the application and notes were executed by defendants on August 12...

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