Shute v. Manchester Fire Assur. Co.

Citation36 S.E. 541,58 S.C. 186
PartiesSHUTE v. MANCHESTER FIRE ASSUR. CO. et al.
Decision Date11 July 1900
CourtSouth Carolina Supreme Court

Appeal from common pleas circuit court of Lancaster county; O. W Buchanan, Judge.

Action by H. H. Shute against the Manchester Fire Assurance Company and another. From a judgment in favor of defendants plaintiff appeals. Reversed.

R. E. & R. B. Allicon, for appellant.

Ernest Moore, for respondents.

POPE J.

The trial of this action was had before Judge Buchanan at the October term, 1899, of the court of common pleas for Lancaster county. After plaintiff closed his testimony, upon the motion of defendant the Manchester Fire Assurance Company Judge Buchanan ordered the nonsuit of plaintiff. After entry of judgment thereon, plaintiff appealed.

It seems to us that the error of the circuit judge, if error there be, lies in a very narrow compass,--so narrow that we may lay our finger on it, if it exists. The grounds of the motion for nonsuit were: "That the proof does not correspond with the allegation of the complaint; the testimony of the plaintiff showing that he did not have the estate in the property in question which the complaint alleged; objection having been made to all evidence showing any estate or insurable interest in the plaintiff other than alleged in the complaint. The insurable interest represented by the plaintiff and his wife in the property mentioned in the policy was not insured. That where the plaintiff alleges himself to be the owner of the property, and bases his complaint thereon, alleging that such insurable interest was insured under the policy, therefore he cannot recover thereon by proving another insurable interest, not contemplated by the parties or mentioned in the policy. That the plaintiff alleges one contract, and offers proof as to another. Also, that the very policy annexed as an exhibit to the complaint contained a promissory warranty on the part of the plaintiff that he was the sole and unconditional owner of the property, and that the building was on ground owned by the insured in fee simple, and in his complaint the fulfillment of this condition is alleged, whereas there is no proof either of the contract alleged, or the fulfillment of the terms and conditions thereof." The foregoing grounds of motion for a nonsuit were substantially taken down by a stenographer. The plaintiff (appellant), in argument contended that the execution of the alleged deed of conveyance had not been proved, and the deed had not been offered in evidence, and that the title of the property was still in the plaintiff; and, when the judge indicated an adverse view, plaintiff's counsel remarked, "If your honor has any doubt about the delivery of the deed, we would like to put the subscribing witnesses on the stand, as to the execution and delivery of the alleged deed." The judge refused to do this; remarking that the plaintiff had rested and this was a motion for a nonsuit. The circuit judge then made his ruling on the motion, as follows, viz.: "My idea about the case is this: Here is a man comes to an insurance company, by his agent, and says: 'Look here. You have been carrying my insurance about 3 or 4 years. I want to renew my insurance.' Practically says that, because, when he says that by an agent, he says that himself. No questions were asked, at all. The company says: 'All right. Here it is.' Well, it turns out now that at a time heretofore that property upon which this policy was written had been conveyed to somebody else. The agent of the company says: 'Well, I insured you' such a time and such as time. 'I will insure you in pursuance of the contract.' Well, now, not one syllable is given him of any change at all in the condition. Here is a man who has conveyed away the property, knows the insurance has been carried as his property, and does not give the insurance company a word of notice. Is that putting these men on notice? The company did not know it. Was it his negligence, his lack of care? I don't think, from whatever standpoint you view it, there is any evidence of waiver. There is certainly not any evidence here to show any fee-simple title, nor can the complaint be sustained here upon the ground of a lesser estate. Now, if plaintiff's statement be true, he not only has no lesser estate, but no estate at all, except an estate hung up in the skies, depending upon the affection the children have for their--for the plaintiff? I don't think so. He does not sue as agent,--as trustee. He sues in his own name. He does not say he was acting for A., B., and C.,--acting as agent,--but the allegation is that he is owner in fee simple. Well, now, it might be said in reply that the matter of forfeiture is a matter of specific defense; but it is also true, when a plaintiff undertakes to anticipate the defense, and to prove that, and to prove himself in court and out of court at the same time, he goes out of court, because he could have gone and proved his loss alone. Now, by the same thing he attempts to prove his status in court he proves himself out of court. I think the nonsuit ought to go. That is my judgment." The judge then signed the following order of nonsuit: "The plaintiff having concluded his evidence, and a motion for a nonsuit having been made by the defendant, after hearing argument, ordered that said motion for nonsuit be, and the same is hereby, granted, upon the grounds made and reasons expressed, taken down by the stenographer. October 24, 1899. O. W. Buchanan, Judge."

Notice of appeal from the judgment and order of nonsuit, and from the ruling of the circuit judge at the trial, within 10 days from the rising of the court, to the supreme court, for reversal and correction of the same, was given; and the following are...

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