Charles v. Canal Ins. Co., 17815

• Decision Date: 02 August 1961
• Docket Number: No. 17815,17815
• Parties: A. T. CHARLES, Respondent, v. CANAL INSURANCE COMPANY, Appellant.
• Court: South Carolina Supreme Court

Page 200

121 S.E.2d 200

238 S.C. 600

A. T. CHARLES, Respondent, v. CANAL INSURANCE COMPANY, Appellant.

No. 17815.

Supreme Court of South Carolina.

Aug. 2, 1961.

Leatherwood, Walker, Todd, & Mann, Greenville, Rufus M. Ward, Spartanburg, for appellant.

Johnson & Smith, Spartanburg, for respondent.

JAMES HUGH McFADDIN, Acting Justice.

This appeal is concerned with the amount of appellant's liability to respondent under its policy insuring him against loss or damage to his diesel tractor and trailer by collision or upset. It is undisputed that the loss was within the coverage and was total, except for salvage value. Appellant, contending that the coverage was limited, by a policy endorsement, to $2,000 less $250 deducible, on each of the two pieces of equipment, moved for judgment in favor of respondent for $3,500, and for dismissal of his claim in excess of that amount. Respondent moved for direction of verdict in his favor in the amount of the actual cash value of the tractor and trailer at the time of the loss, August 30, 1958, less the admitted salvage value, $361, and less $250 admittedly deductible as to each piece of equipment, plus interest from the commencement of the action. The trial judge, refusing appellant's motion and granting that of respondent, submitted the issue of the amount of actual cash value to the jury, who found it to be $8,700; and accordingly judgment was ordered against appellant for $7,839 with interest and costs. Appeal is from that judgment. The amount of the actual cash value as found by the jury is not questioned.

This appeal requires that we determine whether respondent's motion, or that of appellant, should have been granted. The portions of policy and endorsements which require interpretation to determine the correctness of the judgment below are quoted with certain emphasis and explanation by the writer:

"AUTOMOBILE POLICY

"DECLARATIONS

"Item 2. Policy Period

"From May 29, 1958 to May 29, 1959

"SUBJECT TO PREMIUM PAYMENT ENDORSEMENT ATTACHED"

This language is typed in capital letters and its significance will hereafter be referred to. " Item 3. The insurance afforded is only with respect to such and so many of the following coverages as are indicated by specific premium charge or charges. The limit of the company's liability against each such coverage shall be as stated herein, subject to all the terms of this policy having reference thereto.

                Premiums  Limits of Liability    Net      Coverages
                                                   Rates
                -------------------------------------------------------------------------------
                $         $                      $        A Comprehensive--Loss of or damage to
                                                            the Automobile, except by Collision
                                                            or Upset but including Fire, Theft
                                                            and Windstorm
                -------------------------------------------------------------------------------
                          Actual Cash Value       Class
                            less
                $449.35   $250.00 which                   B Collision or Upset
                            deductible
                $307.00   amount shall be
                            applicable to
                          each Collision or
                            Upset
                -------------------------------------------------------------------------------
                $41.00    $2,000.00              $1.95--  C Fire, Lightning and
                                                   2.25
                $47.00                                    Transportation
                -------------------------------------------------------------------------------
                $ Incl.   $2,000.00              $ .10    D Theft (Broad Form)
                -------------------------------------------------------------------------------
                $ 2.00    $2,000.00              $ .10    E Windstorm, Hail, Earthquake or
                                                            Explosion
                -------------------------------------------------------------------------------
                $2.00     $                      $        F Combined Additional Coverage
                -------------------------------------------------------------------------------
                $         $10 for each                    G Towing and Labor Costs May not be
                            disablement                     written in California
                -------------------------------------------------------------------------------
                $         $                      $
                -------------------------------------------------------------------------------
                $848.35 Total Premium
                -------------------------------------------------------------------------------
                

"Item 4. Description of the automobile and facts respecting its purchase by the insured:

                Car  Year of
                No.  Model    Trade Name   Model  Body Type:         Motor    Serial
                                                  Truck Size, Truck  Number   Number
                                                  Load Capacity
                                                  Tank Gallonage
                                                  Capacity, or Bus
                                                  Seating Capacity
                ------------------------------------------------------------------------
                     1953     G.M.C.              Diesel Tractor     4A33291  1465
                     1953     Trailmobile         32 ft. Van                  5100600039
                ------------------------------------------------------------------------
                Car  If Passenger Car     Actual Cost     Purchased   The automobile is
                No.  Show Symbol If       When Purchased  Month, New  unencumbered un-
                     Commercial Show      Including       Year Used   less otherwise
                     Original Cost New    Equipment                   stated herein
                     Including Equipment
                -----------------------------------------------------------------------
                                          $13,000
                                          $ 7,500
                -----------------------------------------------------------------------
                

On another page, where are set out the 'Insuring Agreements', the company:

'Agrees with the insured, named in the declarations made a part hereof, in consideration of the payment of the premiums and in reliance upon the statements in the declarations and subject to the limits of liability, exclusions, conditions and other terms of this policy:

'Insuring Agreements

'I. Coverage A--Comprehensive Loss of or Damage to the Automobile, Except by Collision or Upset:

'Coverage B--Collision or Upset: To pay for direct and accidental loss of or damage to the automobile, hereinafter colled loss, caused by collision of the automobile with another object or by upset of the automobile.

'Coverage C--Fire, Lightning and Transportation:

'Coverage D--Theft (Broad Form):

'Coverage E--Windstorm, Hail, Earthquake or Explosion:

'Coverage F--Combined Additional Coverage:

'Coverage G--Towing and Labor Costs:

'II. Loss of Use by Theft--Rental Reimbursement: The Company, following a theft covered under this policy of the entire automobile, shall reimburse the insured for expense not exceeding $5 for any one day nor totaling more than $150 or the actual cash value of the automobile at time of theft, whichever is less, incurred for the rental of a substitute automobile, including taxicabs. Such reimbursement is payable by the company in addition to the applicable limit of liability of this policy.'

'IV. Automatic Insurance for Newly Acquired Automobiles:

'(b) if it is an additional automobile and if the company insures all automobiles owned by the insured and such spouse at such delivery date;

provided, when a limit of liability is expressed in the declarations as a stated amount, such limit shall be replaced by the actual cash value.'

'V. Use of Other Automobiles--Collision or Upset Coverage: If the insured is an individual or husband and wife and if during the policy period such insured, or the spouse of such individual if a resident of the same household, owns a private passenger automobile covered by this policy, such insurance as is afforded by this policy under coverage B with respect to said automobile applies with respect to any other private passenger automobile while being operated or used by such insured or spouse. The term 'private passenger automobile' means a private passenger, station wagon or jeep type automobile, and also includes any automobile the purposes of use of which is stated in the declarations as 'pleasure and business'. Exclusion (b) does not apply to this insuring agreement.'

Under 'Conditions' on the last page of the policy, which is signed by the Secretary and the President of the Company, is this language:

'1. Insured's Duties When Loss Occurs: When loss occurs, the insured shall:

'(c) File proof of loss with the company within sixty days after the occurrence of loss, unless such time is extended in writing by the company, in the form of a sworn statement of the insured setting forth the interest of the insured and of all others in the property affected, any encumbrances thereon, the actual cash value thereof at time of loss, the amount, place, time and cause of such loss, the amount of rental or other expense for which reimbursement is provided under this policy, together with original receipts therefor, and the description and amounts of all other insurance covering such property.

'Upon the company's request, the insured shall exhibit the damaged property to the company and submit to examinations under oath by anyone designated by the company, subscribe the same and produce for the company's examination all pertinent records and sales invoices or certified copies if originals be lost, permitting copies thereof to be made, all at such reasonable times and places as the company shall designate.

'2. Appraisal: If the insured and the company fail to agree as to the amount of loss, each shall, on the written demand of either, made within sixty days after receipt of proof of loss by the company, select a competent and disinterested appraiser, and the appraisal shall be made at a reasonable time and place. The appraisers shall first select a competent and disinterested umpire, and failing for fifteen days to agree upon such umpire, then, on the request of the...