Berry v. Virginia State Ins. Co.

• Decision Date: 01 June 1909
• Parties: BERRY v. VIRGINIA STATE INS. CO.
• Court: South Carolina Supreme Court

64 S.E. 859

83 S.C. 13

BERRY v. VIRGINIA STATE INS. CO.

Supreme Court of South Carolina

June 1, 1909

Appeal from Common Pleas Circuit Court of Saluda County; J. W. De Vore, Judge.

Action by M. W. Berry against the Virginia State Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition that remittitur be made.

Blease & Dominick, for appellant.

Barnard B. Evans, for respondent.

WOODS J.

The defendant, Virginia State Insurance Company, appeals from a judgment of $779.80 recovered by the plaintiff on a fire insurance policy.

The action was brought and the judgment entered in Saluda county where the plaintiff now resides. The policy was issued by defendant's agent in Newberry county, in which county the insured property was situated and in which the plaintiff resided at the time of the fire. There was no evidence that the defendant had an agent in Saluda county. Under these facts the defendant, relying on the case of Nixon v Piedmont Ins. Co., 74 S.C. 438, 54 S.E. 657, submits that the court of common pleas of Saluda county was without jurisdiction of the action. The cases cited, and others like it, involved the question of the proper county for the trial of actions against domestic corporations, and they have no application to such question affecting foreign corporations. An action against a nonresident may be brought in any county which the plaintiff may designate. Code Civ. Proc. 1902, § 146. It is true the pleadings do not show by direct allegation that the defendant is a foreign corporation, nor is there any direct evidence on that point; but, from the allegations of the answer, it may be inferred the defendant is a foreign corporation. The name of the defendant, Virginia State insurance Company, gives some indication that it is a corporation of the state of Virginia, and this fact is still shown by the allegation of the answer that in the courts of Virginia certain creditors of the plaintiff had attached the debt due to him by the defendant.

There is no doubt that the plaintiff violated the iron-safe clause of the policy, for he did not use a safe nor keep the books required by the policy, nor keep such books, as he had, in a place not exposed to the fire which destroyed the insured property. This violation of the terms of the policy gave rise to the issue whether the defendant had waived these requirements. Mr Tyree, the agent who issued the policy, died before the trial; but the plaintiff testified that when the policy was issued he told the agent that he had no iron safe, and the agent replied the iron-safe clause was not carried out by all the small stores. The plaintiff's store was a small one the stock of goods being valued at about $2,000. This was some evidence tending to show that the agent of the defendant threw the plaintiff off his guard and took his money for the premium, leading him to believe that compliance with the iron-safe clause would not be expected. A statement to the policy holder...