Copeland v. Western Assur. Co

• Decision Date: 08 January 1895
• Parties: COPELAND . v. WESTERN ASSUR. CO.
• Court: South Carolina Supreme Court

20 S.E. 754

43 S.C. 26

COPELAND .

v.WESTERN ASSUR. CO.

Supreme Court of South Carolina.

Jan. 8, 1895.

Action on Insurance Policy — Pleading—Evidence.

1. In an action on an, insurance policy, where defendant claims noncompliance with the requirements of the policy, the objection must be alleged.

2. Where the defendant insurance company alleges failure of plaintiff to perform certain requirements of the policy, plaintiff is not required to show such performance.

3. Where defendant alleges that plaintiff failed to perform certain requirements of the policy, although it appears from plaintiff's testimony in chief that he has not performed such requirements, defendant is not entitled to a nonsuit; plaintiff having a right to show defendant's waiver of, or estoppel to make, such objection.

Appeal from common pleas circuit court of Sumter county; D. A. Townsend, Judge.

Action by Samuel Copeland against the Western Assurance Company upon a policy of fire insurance. Judgment for defendant, and plaintiff appeals. Reversed.

Lee & Moise, for appellant.

Purdy & Reynolds, for respondent

GARY, J. This was an action on a policy of Insurance for $1,000. The answer of defendant, among other things, interposed as a defense that the plaintiff failed to comply with the requirements of that clause in the policy of insurance commonly known as the "Iron-Safe Clause." Plaintiff offered in evidence the policy of insurance. During the introduction of plaintiff's testimony in chief, evidence was brought out to show that the plaintiff had failed to comply with the requirements of the policy set forth in the iron-safe clause. The plaintiff offered to introduce testimony to show that the defendant had waived its right to insist upon such requirement, but his honor, the presiding judge, ruled that such testimony was inadmissible. At the close of plaintiff's testimony, the defendant moved for a nonsuit, which was granted. The plaintiff appealed from such order.

During the progress of the trial on circuit, a number of other questions were raised, and the rulings of the trial judge on them are made the grounds of other exceptions. The conclusion at which this court has arrived in regard to the order of nonsuit renders it unnecessary to pass specifically on the other exceptions.

In the case of Sample v. Insurance Co. (S. C.) 19 S. E. 1020, Mr. Justice Pope, in delivering the opinion of the court, says: "The consumption of unnecessary time in the trial of causes should be avoided. But in a case where the complaint does not set out the facts relied upon by the defendant, and such defendant, for the first time, presents such facts in the answer, the orderly administration of justice demands that the trial shall proceed in the usual way, by first allowing the plaintiff to introduce such proofs as its pleading may require, then hearing the defendant's testimony, then any reply by the plaintiff. Take this case as an illustration. Here the plaintiff did not set out in her complaint the facts relied upon by the defendant for its exoneration from liability under its contract with the plaintiff. Such being the case, the plaintiff was not required to offer evidence as to the facts relied upon by the defendant. But, when defendant's time to open arrived, then it should have proved that there was such a stipulation in the policy Issued by it to plaintiff. And the plaintiff, in her reply, had the right to show, if she could, either that the testimony was untrue, or that the defendant had waived this stipulation as to 12 months' limit to action against it, or that the conduct of the defendant had estopped it from urging any such stipulation In its defense. The conduct of the circuit judge...