Davis v. Home Ins. Co.

• Decision Date: 16 July 1923
• Docket Number: 11272.
• Parties: DAVIS v. HOME INS. CO.
• Court: South Carolina Supreme Court

118 S.E. 536

125 S.C. 381

DAVIS v. HOME INS. CO.

No. 11272.

Supreme Court of South Carolina

July 16, 1923

Appeal from Richland County Court; M. S. Whaley, Judge.

Action by Henry Davis against the Home Insurance Company. From a judgment for defendant entered on a directed verdict plaintiff appeals. Reversed and remanded for new trial.

Graydon & Graydon, of Columbia, for appellant.

Benet Shand & McGowan, of Columbia, for respondent.

COTHRAN J.

Action upon a policy of insurance issued upon an automobile. The sole question involved is whether or not the policy was in force at the time of the injury to the car insured against.

On June 13, 1921, the plaintiff purchased an automobile from Capital City Garage & Tire Company for $1,250; in the settlement the plaintiff, by cash and note secured by mortgage, paid for the car and insurance thereon for a year; the seller was not an agent of the insurance company, but undertook to procure the insurance for the plaintiff and to protect itself; on the 17th, four days later, the insurance company issued the policy, which was dated June 13, 1921, and fixed the term of insurance from June 13, 1921, to June 13, 1922, duly countersigned; the policy contained a provision that it should be valid only when countersigned by the duly authorized agent of the company; on June 15, 1922, the car was damaged in a collision, a risk covered by the policy and, the company refusing to pay, this action was instituted for the amount of the policy, $1,000. Upon the trial before Hon. M. S. Whaley, county judge, and a jury, he directed a verdict for the defendant, upon the ground that at the time of the collision the policy had expired by its limitation the correctness of this ruling is the only point involved.

The obvious intention of the parties was to provide insurance for a year. Under the provisions of the policy there could have been no liability upon the insurance company until the policy had been countersigned, which was not done until June 17, 1921. During that interval, the company not being liable, the plaintiff had no insurance. It would be unjust that he be required to pay for insurance upon which it was impossible for him to have realized in the event of loss; and it is nothing but fair that he should have the benefit of the full term for which he has paid, which would be one year from June 17, 1921, inclusive of June 15, 1922, the date of the collision.

A strikingly similar case is that of Cecil v. Ins. Co., 165 Ky. 211, 176 S.W. 986. The application for insurance upon a horse was dated March 26, 1913; it was accepted at the home office on March 29, 1913, and delivered on April 1, 1913; the time was fixed "from the 26th day of March, 1913, at noon, to the 26th day of March, 1914, at noon"; it contained a provision that it should not be in force until delivered to the insured and payment of premium; the horse died on March 27, 1914. The court held:

"Since Cecil paid for insurance for a year, which according to

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