Cromer v. Cromer

• Decision Date: 16 June 1987
• Docket Number: No. 1014,1014
• Citation: 293 S.C. 360,360 S.E.2d 528
• Court: South Carolina Court of Appeals
• Parties: John C. CROMER, Respondent, v. Donald E. CROMER and Harleysville Mutual Insurance Company, Appellants. . Heard

Page 528

360 S.E.2d 528

293 S.C. 360

John C. CROMER, Respondent, v. Donald E. CROMER and Harleysville Mutual Insurance Company Appellants.

No. 1014.

Court of Appeals of South Carolina.

Heard June 16, 1987.

Decided Aug. 10, 1987.

Richard H. Rhodes and C. Roland Jones, Jr., Spartanburg, for appellants.

James C. Cothran, Spartanburg, for respondent.

SHAW, Judge:

Appellants, Donald E. Cromer (hereinafter Donald) and Harleysville Mutual Insurance Co. (hereinafter Harleysville) appeal a circuit court order finding respondent John C. Cromer (hereinafter John) entitled to one-half of the proceeds of insurance from the loss of a barn due to fire. The trial court held Donald and Harleysville were jointly and severally liable to John in the amount of $27,500 plus cost. We affirm.

While this court has jurisdiction to find facts based on its own view of the evidence in an equity matter, it is not required to disregard findings of the trial judge who saw and heard the witnesses and is in a better position to evaluate. Allen v. Allen, 287 S.C. 501, 339 S.E.2d 872 (Ct.App.1986).

This case arises out of an accounting action brought by John. John and his brother Donald entered into an oral agreement to raise and board horses. To begin the business, a barn was constructed on Donald's land. Each of the brothers contributed around $15,000 to the start of the business. Each contributed time and other monies, approximately in the same amount, to running the business, sharing equally in any profits and losses from the horse business. The business proved to be less profitable than hoped for and Donald lessened his involvement in the operation after health problems arose.

In 1980, Donald purchased insurance on the barn in the name of Sand Box Day Care, Inc. and, in 1982, increased the coverage up to $55,000. John claimed, at both times he questioned Donald as to insurance coverage and his share of the premiums and was told the barn was covered, but Donald never made any demands for contributions toward the premiums.

In 1984, the barn was destroyed by fire. After the fire, John notified Harleysville he claimed an interest in the insurance proceeds and requested no payment be made unless he was included in the disbursement of the proceeds. John then instituted this action naming Harleysville as a defendant and requesting the insurance proceeds be interpleaded into court. After filing of the suit and service upon Harleysville, Harleysville paid the entire $55,000 to Sand Box Day Care, Inc., the named insured.

Donald argues the trial court erred in finding John was entitled to an interest in the policy claiming the insurance was taken out only to cover his half interest in the barn and not for the benefit of the partnership. There is ample evidence in the record to support the trial judge's finding that the insurance was taken out for the benefit of the partnership. There is evidence John believed his brother was handling the insurance on the barn for both of them. In addition, there was uncontroverted evidence that it was typical for the brothers to take turns paying out of their pockets for the maintenance of the business. Finally, the trial judge stated in his order "having weighed the evidence, and observed the demeanor of the witnesses, and in particular, the demeanor of the parties, I find and so conclude that the insurance on the barn was purchased for the partnership ..." (emphasis added). The trial judge was in a better position to evaluate the witnesses and we will not disturb the findings within his sound discretion. Allen, supra.

Donald next argues the trial court lacked subject matter jurisdiction to grant a judgment against him since the policy was owned by Sand Box Day Care, Inc., who is not a party to this suit, the premiums were paid from proceeds from the day care operation and the insurance proceeds were paid to Sand Box. We disagree. Donald never contended at trial that he was not the recipient of the insurance proceeds. Where the record fails to reflect a point has been raised in ...