Plunkett v. Piedmont Mut. Ins. Co.

• Decision Date: 29 June 1908
• Citation: 61 S.E. 893,80 S.C. 407
• Parties: PLUNKETT v. PIEDMONT MUT. INS. CO.
• Court: South Carolina Supreme Court

61 S.E. 893

80 S.C. 407

PLUNKETT v. PIEDMONT MUT. INS. CO.

Supreme Court of South Carolina

June 29, 1908

Appeal from Common Pleas Circuit Court of Aiken County; R. W Memminger, Judge.

Action by W. W. Plunkett against the Piedmont Mutual Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Croft & Croft and Carlisle & Carlisle, for appellant.

Wm. M Smoak and Davis, Gunter & Gyles, for respondent.

POPE C.J.

Plaintiff commenced his action against the defendant on the 20th day of October, 1906, to recover the sum of $300 because of the destruction by fire of his one-story shingle-roof house wherein he kept a general stock of merchandise, all of which was destroyed by fire on the 7th day of August, 1906. Against such destruction by fire the defendant had issued its policy of insurance. The complaint set forth the ownership and destruction of such stock and merchandise and the insurance thereof by the defendant on the 16th day of June, 1906. The answer of the defendant denied all the allegations of the complaint, except its corporate character, and that it had issued the policy referred to, but it was denied that there was any liability by the defendant, because it alleged: That the plaintiff was not the owner of said stock of goods; second, that the stock was overvalued; and, third, that said plaintiff had failed to keep an inventory of his said stock of merchandise and preserve the same either in an iron safe or in some safe place secure from the destruction by fire. The matter came on for trial at the fall term of the court of common pleas for Aiken county before Judge R. W. Memminger and a jury, and, after the hearing of testimony on both sides and the charge of the presiding judge thereon, the jury returned a verdict in favor of the plaintiff for the sum of $250. Thereupon the defendant appeals to this court on four grounds, which we will now consider in their order:

1. "Because his honor erred in charging the jury as follows: 'If you are satisfied from the testimony that he has perpetrated a fraud or swindle upon this company by misrepresentation of anything material going to make up the contract, or by concealing anything from them which was material, if he has concealed or misrepresented anything to the company which is material in the matter of the contract, then he ought not to recover and cannot recover in the case,'-for it is submitted that there was no testimony, on, nor was there any pleading raising, the defense of fraud, and that therefore said charge was inapplicable, misleading, and in fact prejudiced the defendant's case, as in effect it inferred for the jury a defense upon which the defendant did not in fact rely."

We do not see that there was any error by the circuit judge in directing the jury that, if they found any fraudulent practices adopted by the plaintiff against the defendant, they would return a verdict for the defendant. We think the defendant by its answer virtually set up fraud, and therefore it was the duty of the circuit judge to admonish the jury of their duty in such case; but, apart from this, we do not think the defendant has prepared himself to thus assail the charge of the judge. No motion for a new trial or the direction of a verdict or the alleged error in the charge of the circuit judge was brought to his attention, either on motion for arrest of judgment or otherwise. This court has held that, in order to make an objection to the judge's charge upon the ground before referred to, the defendant should have called his honor's attention to the fact that he did not rely upon the defense of fraud. The question of the circuit judge instructing the jury upon a question not involved in the pleadings, or of a mistake in stating issues arising therefrom, has been before this court several times. It will be seen by referring to the case of Nickles v. Ry. Co., 74 S.C. 136, 54 S.E. 266. There the court said: "Whatever may be the view elsewhere, our cases support the view that an instruction upon an issue as to which there is no evidence whatever, or a mistake in stating issues, is not reversible error unless the attention of the court is called to the matter." See Vann v. Howle, 44 S.C. 546, 22 S.E. 735; Crosswell v. Association, 51 S.C. 469, 29 S.E. 236; State v. Still, 68 S.C. 38, 46 S.E. 525, 102 Am. St. Rep. 657. This first ground of appeal is overruled.

2. "Because his honor, the presiding judge, erred in charging the jury as follows: 'If you decide from the testimony that an agent of the company having something more than the mere power of soliciting the insurance knew that he did not have an iron safe, and that he did not keep his books in that place, and nevertheless issued the policy and let the policy continue in force, why you would realize at once that that would not be fair to the man, because the knowledge that the agent had of those facts would be imputed to the company. The company would be held to know that he did not, and it would be estopped. It could not then come in and say the policy was forfeited because the man did not comply with that clause. That would not be fairness, and it is not law,'-for it is submitted that, since the defendant company is a mutual insurance company, the stipulation in the policy that the assured would keep inventory books in a safe place, as called for in the contract of insurance, was a warranty precedent under the constitution, by-laws, and contract of insurance of the defendant company, and as such the jury should have been instructed that the same could not be waived by any act of an agent of the defendant company, except in the manner expressly provided in the policy itself."

We have so...