Keistler Co v. &aelig

• Decision Date: 01 February 1923
• Docket Number: (No. 11123.)
• Citation: 117 S.E. 70
• Court: South Carolina Supreme Court
• Parties: KEISTLER CO. v. ÆTNA INS. CO., HARTFORD, CONN.

117 S.E. 70

KEISTLER CO.

v.ÆTNA INS. CO., HARTFORD, CONN.

(No. 11123.)

Supreme Court of South Carolina.

Feb. 1, 1923.

Cothran, J., and Weston, A. A. J., dissenting.

Appeal from Common Pleas Circuit Court of Chester County; H. P. Rice, Judge.

Action by the Keistler Company against the Ætna Insurance Company, Hartford, Conn. Judgment for plaintiff, and defendant appeals. Affirmed.

W. Anderson Clarkson, of Columbia, for appellant.

Gaston & Hamilton, of Chester, for respondent.

GARY, C. J. This is an action on a policy of fire insurance. The allegations of the complaint are as follows:

"(1 and 2) [The allegations of these paragraphs are formal.]

"(3) That on the 21st day of December, 1920, the defendant insured against all direct loss or damage by fire the Keistler Company for the term of one year from date of the policy, to the amount of $2,500, its entire stock of general merchandise, contained in a brick building, with metal roof, on the west side of extension of Main street, near Great Falls, and the said defendant issued its said insurance policy in writing, bearing No. 1116, and delivered the same to the plaintiff at and for a money consideration as a premium.

"(4) That on the 26th day of January, 1921, a fire occurred, thereby damaging and destroying completely the entire stock of goods of the plaintiff, which was insured by the defendant company, under said policy, against all direct loss or damage by fire.

"(5) That the plaintiff's loss and damage to the stock of goods, insured by the defendant company, was far in excess of $5,500, the total amount of insurance carried on the stock of goods, the defendant company having concurred in total insurance to said amount, and the plaintiff's loss was total.

"(6) That under the terms of the said policy the defendant company is now liable to the plaintiff for the sum of $2,500, with interest thereon from the 26th day of January, 1921, and that the said company has failed and refused, and still fails and refuses, to pay the plaintiff the sum of $2,500, or any other sum, in settlement of its liability to the plaintiff, as aforesaid."

The answer of the defendant is as follows:

For a first defense:

"(1) That it denies each and every allegation in the said complaint contained."

For a second defense:

"(1) That the contract of insurance, mentioned in the complaint herein provides among other things as follows, to wit: 'If a building or any material part thereof falls, except as a result of fire, all insurance by this policy on such building or its contents shall immediately cease.'

"(2) That on or about the 26th day of January, 1921, the roof of the building containing stock of merchandise insured by said policy fell in and demolished said building and the contents thereof.

"(3) That thereafter, and as a result of the falling roof, a stove used in heating said building teas overturned, from which the debris and wreck caused by the said falling roof caught fire, and the same was totally destroyed. (Italics added.)

"(4) That, in accordance with the provisions of said policy set out above, all insurance upon the contents of said building immediately ceased upon the falling in of the roof set out above."

On the first trial of this case the jury failed to agree, but on the second trial there was a verdict in favor of the plaintiff for $2,500, with interest from the 15th day of March, 1921, and the defendant appealed upon exceptions, which its attorney has divided into three classes. In the first class are included exceptions numbered 2, 4, 6, and 8, which are as follows:

(2) "Because his honor, the presiding judge, erred in refusing to grant the defendant's motion for a direction of a verdict, on the ground that the only inference that can be drawn fromthe testimony is that the building, which contained the goods insured in the case, or a material part of it, collapsed before the fire, and that, in accordance with the terms of the policy, the insurance under said policy ceased at that time, and that there is no evidence of any new contract of insurance; the error being that said provision constituted an excepted risk against which defendant did not insure, and for which it collected no premium."

(4) "Because his honor, the presiding judge, erred in refusing to charge defendant's first request to charge, to wit: 'If you find that the roof and part of the side walls of the building which contained the stock of merchandise insured under the policy involved in this case fell and collapsed, and that a fire started immediately thereafter and consumed the merchandise covered by the said policy, then, and in that event, I charge you that you must find for the defendant.' The error being that it contains a sound proposition of law applicable to the case, and is not a charge on the facts."

(6) "Because his honor, the presiding judge, erred in refusing to charge defendant's third request to charge, to wit: 'I charge you that the defendant, under its policy sued on in this case, insured a stock of merchandise in a building that was standing and intact and not in a building a material part of which had fallen. To find the defendant, liable for a fire which had destroyed the contents of a building that had fallen, you would have to find that the defendant had insured the plaintiff against that special risk, or that it had made a new and distinct contract of fire insurance after the collapse of the building. I charge you that there is no evidence of any such contract in this case'—the error being that it contains a sound proposition of law applicable to the case, and is not a charge on the facts."

(8) "Because his honor, the presiding judge, erred in refusing to charge defendant's seventh request to charge, to wit: 'The undisputed testimony in this case shows that the roof of the building containing the merchandise covered by the policy of insurance sued on in this case and also part of the side walls of same fell before the goods caught fire. Under these circumstances, I charge you that the policy of insurance sued on in this case ceased at the time of the collapse above mentioned and that there being no evidence of a new contract of insurance your verdict must be for the defendant'—the error being that it contains a sound proposition of law applicable to the case and is not a charge on the facts."

In stating the questions raised by these exceptions the defendant's attorney in his argument says:

"Exceptions 2, 4, 6, and 8, in which the trial court's refusal to grant a directed verdict on the ground that the building containing the goods insured by the defendant-appellant had fallen in before the fire, and that under the terms of the policy all insurance under it ceased at the time of the collapse, and its refusal to charge the jury to the same effect, is questioned."

A. N. Keistler thus testified for the plaintiff:

"On the night of the 26th the roof to our building fell in, and it immediately caught fire,

and everything was destroyed in the building. We notified Mr. Mullican, the agent, on the next morning, and told him we would like to commence cleaning up and get ready to rebuild as soon as possible. He came up and looked over it, satisfied himself that it was a complete loss, and told us to go ahead; that the company would settle with us; that it would be all right to go ahead and clean up and get ready to rebuild. I told him how it occurred. We had no insurance on the building. Heavy sleet and ice caused the roof to fall. The stove was not turned over. I could not say what caused the fire. The goods were destroyed by fire. The roof, which was solid tin, fell in, and the goods, I would say, were fairly well protected by this roof covering; very little damage if there had been no fire. Value of stock was $15,000. We went ahead to clear up the place and rebuild. About three weeks after the fire, an insurance adjuster, Mr. Wallace, came to see me. He told us he came to investigate the loss. I took him down, showed him the place, and told him how the fire occurred. He asked for the policies, and we gave them to him."

Cross-Examination by Mr. Clarkson.

"My house is about 200 yards from the store. We have no street lights. I was at home. The bookkeeper called me over the phone and told me he heard the roof crack. I immediately ran to the store, and when I got there the roof was in, and the fire had started. Our store faces about north and south. It is 75 feet long and 35 feet wide. No pillars in the middle. It was a truss roof. When the roof fell in like that, the outside fell down. The wall on the east side broke about 2 or 3 feet from the front at the top, angled down until about 3 or 4 feet, from the ground, and then ran back to about 10 feet from the back, where about 8 to 10 feet of the wall was left standing. On the west side the wall broke off near the front, and angled down to the ground, nearer the front than the center. At the southwest corner we had an office about 15 feet square that held the wall and roof up. The break started at the top, about the office partition, and went right down. About 15 feet of the wall was left standing. We have shelves on both sides of our store, back to the office on the west side, and the full length on the east side, except for a 4x8 door. We had shelves on the back end. I approached the front of the building from the west side, and went around to the office, as soon as I got there, to look for the boys, and found them back there. The goods were scattered over the ground a very little. When the roof came in at the top, it spread out, and practically all of the goods were covered up by it. Two men were in the store at the time it fell. One telephoned me from the office. * * * The stove was about the middle of the store; stove pipe went to a flue which went from the girders, up through the roof. The pipe and the bricks composing the flue had all fallen in over the stove."

J. R. Goudelock thus testified for the plaintiff:

Direct Examination...