Hartford Fire Ins. Co. v. Garvin
| Decision Date | 06 May 1926 |
| Docket Number | 11974. |
| Citation | 133 S.E. 29,136 S.C. 307 |
| Parties | HARTFORD FIRE INS. CO. v. GARVIN et al. |
| Court | South Carolina Supreme Court |
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 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:
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, 1921. That when executed there was a blank intended to be filled in with the policy number. That the smaller note for $45.13 contained the following stipulation, printed just above the note and preceding the words "policy number": "Exhibit No. 2: To be filled in by agent; Wagener, S. C., Agency, Wagener Real Estate & Guaranty Co." That the larger note was preceded by the following printed stipulation: "Exhibit No. 3: The company is authorized to insert in this note the number and date of policy." That the notes introduced in evidence had the policy number filled in. That the agent who took the application and the notes forwarded them to the head office in Atlanta. That this agent had worked at the head office and knew that it was the rule or custom that the numbers were not inserted in the notes unless and until the policy was issued. That if an application was not approved a letter was written to the agent through whose office the application was forwarded. That a copy of this letter was sent to the agent who had taken the application. That the agent who had taken this application had never received any letter to the effect that the policy was not issued. That both the application and the notes had been retained by the company.
While the "weight of authority supports the rule that mere delay in passing on an application for insurance cannot be construed into an acceptance of it" (14 R. C. L. p. 896 § 72), the fact that the company retained both the application and the notes given in payment of the premium, taken in connection with the...
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