Carpenter v. American Acc. Co.

• Decision Date: 16 April 1896
• Citation: 24 S.E. 500,46 S.C. 541
• Parties: CARPENTER et al. v. AMERICAN ACC. CO.
• Court: South Carolina Supreme Court

24 S.E. 500

46 S.C. 541

CARPENTER et al. v. AMERICAN ACC. CO.

Supreme Court of South Carolina

April 16, 1896

Appeal from common pleas circuit court of Chester county; W. C Benet, Judge.

Action by Simon P. Carpenter and others against the American Accident Company on an accident policy. From a judgment for plaintiffs, defendant appeals. Affirmed.

Geo. W Gage, for appellant.

Glenn & McFadden, for respondents.

JONES J.

This is a suit upon an accident policy of insurance for $2,500 issued by the defendant company to Charles W. Carpenter, late of Chester, S.C. The defendant is a foreign corporation incorporated under the laws of Kentucky; did business in accident insurance in this state, and had local agents at Chester, S.C. The policy insured "C. W. Carpenter, of Chester, S. C., for three calendar months, beginning at noon on the 12th day of February, 1894, *** against bodily injuries sustained through external, violent, and accidental means," and promised, "upon satisfactory proof of same, to pay the insured, if he survives, such sum as is provided on the back hereof, or if death results within ninety days, as provided, will pay two thousand five hundred dollars to his legal representatives." The policy further provided that "this insurance does not cover *** accidental injuries or death resulting from or caused by *** voluntary exposure to unnecessary danger," etc. The policy was dated, "Louisville, Ky., 12th day of February, 1894." The insured was classed in "division D, $2,500." It seems that in the table of indemnity adopted by this company the divisions are A, B, C, D, E, and so on, and the corresponding scale of insurance is $5,000, $4,000, $3,000, $2,500, $2,000, and so on down. The classification for persons connected with livery stables seems to be as follows: Livery stable clerk, D; bookkeeper, office duties only, A; keeper, superindendent, D; bookkeeper, working, E. The insured, in his application, stated his kind of business as livery stable keeper, superintendent; occupation, proprietor of livery stable; duties, fully described, superintendent. The evidence tended to show that the policy was delivered to and accepted by the insured at Chester, S. C., his place of residence, on the morning of the 19th of February, 1894. On the evening of that day, after dusk or dark, Carpenter was kicked on the head by a mule, from which injury he died February 22, 1894. Plaintiffs applied for letters of administration February 27, 1894, and received letters March 19, 1894, from the probate court of Chester county. We cannot ascertain from the case when this action was commenced, but it appears to have been tried March, 1895. The defendant appeared generally in the case, and answered on its merits. The complaint contained the allegation appropriate in such a case. We note specially that in paragraph 2 the complaint alleged that the policy sued on was payable to the legal representatives of Charles W. Carpenter "at Chester, S. C." The answer not only does not deny this, but expressly admits that the defendant mailed a policy like that described in the complaint to its agents at Chester, S. C., on February 12, 1894. The answer raised an issue as to the delivery of the policy; alleging, on information, that it "was not delivered to Charles W. Carpenter before the alleged accident of 19th February, 1894." Three affirmative defenses are also set up, viz.: (1) That the policy was violated by the fraud of the insured in not stating his true occupation,--having represented himself as proprietor of a livery stable, whereas he also occupied himself in selling and buying live stock, and handling the same in person, thus subjecting himself to extraordinary risks,--and that said Carpenter met the alleged accident by engaging in the occupation of a hostler, and that his true classification was in division E, $2,000; (2) "that the said Charles W. Carpenter met his death by voluntarily exposing himself to unnecessary danger, and by gross contributory negligence, out of the line of his occupation, to wit, by the reckless and unnecessary handling of a mule, in the nighttime, known to him to be ill-tempered and dangerous;" (3) that the policy was forfeited by failure to furnish positive, sworn proof of accidental death to the company within 30 days from date of death. The case was tried before Judge Benet and a jury. On the close of plaintiffs' testimony, defendant's counsel moved for a nonsuit on three grounds, as follows: (1) That plaintiffs are nonresidents; (2) that the cause of action did not arise in this state; (3) that no proof of death was furnished within 30 days. The circuit judge overruled the motion for a non-suit, but declined to pass on the question of residence, on the ground that it was a question of fact, for the jury. The trial resulted in a verdict for the plaintiffs for $2,500. From the judgment, defendant appeals.

The first exception is: "(1) Because his honor, the circuit judge, erred in not holding that the court of common pleas for said county and state was without jurisdiction to try this cause; it appearing from the testimony that the plaintiffs were not residents of the said state, and that the cause of action did not arise in said state, and that the subject of the action was not situated in the said state, and that defendant was a corporation created under and by the laws of another state, to wit, the state of Kentucky." We think it clear that the circuit court had jurisdiction on the ground that the cause of action arose in this state. Section 423 of the Code of Procedure provides as follows "An action against a corporation created by or under the laws of any other state, government, or county may be brought in the circuit court (1) by any resident of this state, for any cause of action, (2) by a plaintiff not a resident of this state, when the cause of action shall have arisen, or the subject of the action shall be situated, within this state." As stated above, by the pleadings it appeared that the policy sued on was payable at Chester, in this state. A cause of action on a contract arises at the place of performance; for there the delict or wrong, which is the refusal to perform, takes place. Accordingly, in Rogers v. Association, 17 S.C. 406, this court dismissed an action against a foreign corporation because the policy or indemnity was payable in another state, on the ground that the cause of action arose in the state where the alleged contract was to be performed. Said the court, "The delict which created the cause of action was in refusing to pay the mortuary benefits according to the tables of the...