Edgefield Mfg. Co v. Md. Cas. Co

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: WOODS, J
• Citation: 78 s. c. 73,58 S.E. 969
• Parties: EDGEFIELD MFG. CO. v. MARYLAND CASUALTY CO.
• Decision Date: 31 August 1907

58 S.E. 969
(78 s. c. 73)

EDGEFIELD MFG. CO.
v.
MARYLAND CASUALTY CO.

Supreme Court of South Carolina.

Aug. 31, 1907.

1. Evidence—Best and Secondary.

In an action on an indemnity policy of insurance, where plaintiff showed that it had been insured in defendant company for several years, taking a renewal policy at the expiration of each term of insurance, and proved that aft er a thorough search among its papers the policy could not be found, and offered in evidence the policy of the preceding year as a copy, except as to dates, such copy was admissible, though no search had been made among the private papers of the officers of plaintiff corporation.

[Ed. Note.—For cases in point, see Cent. Dig vol. 20, Evidence, §§ 605-637.]

2. Insurance — Indemnity Policy — Construction.

Where an indemnity policy provided that no action should lie against the insurance company as to any loss under the policy, unless brought by the insured to reimburse himself for loss actually sustained and paid in satisfaction of a judgment within 60 days from its date, payment must be made of any judgment in favor of an employs for personal injuries within 60 days from the date of the judgment.

3. Same—Notice of Accident"—Action—Notice—Waiver.

In an action against an indemnity company, the policy stipulated that the insured should give immediate notice of the accident, and, if any suit is brought against the insured, he shall immediately forward to the company any summons or other process as soon as served on him, and the company will defend against such proceeding, unless it shall elect to pay the indemnity provided for. The indemnity company participated in a defense after notice that all questions as to the failure of the insured to give prompt notice of the injury sued for were reserved. Held to show no waiver of this requirement of the policy.

4. Depositions—Admissibility.

Testimony de bene esse taken in typewriting is good without a certificate of notary that it was written by the witness or read over to him.

5. Insurance—Indemnity Policy—Notice of Accident—Excuse for Delay.

An indemnity policy stipulated that notice of an injury to an employe of the insured should be immediately given, and any summons of process served on the insured shall be immediately sent to the company. The evidence showed that the vice president in charge of the mill was in ill health when the accident happened to an employs, and shortly thereafter died; that a month later a temporary successor learned for the first time of the casualty insurance, and immediately gave the company notice, and offered to send the summons served against the company on behalf of the injured employs. The vice president and most of the people in the office had been sick with smallpox, and the office closed therefor and quarantined. Held sufficient to justify a jury in finding that the delay in giving notice under the policy was excusable.

Appeal from Common Pleas Circuit Court of Edgefield County; Memminger, Judge.

Action by the Edgefield Manufacturing Company against the Maryland Casualty Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Mordecai & Gadsden and E. H. Folk, for appellant.

Tompkins & Wells and N. G.Evans, for respondent

WOODS, J. The Edgefield Manufacturing Company obtained a policy of insurance for $3,500 in the Maryland Casualty Company to protect it against claims for accidents to its employgs. In the case of Jennings v. Edgefield Manufacturing Company, 72 S. C. 411, 52 S. E. 113, the plaintiff recovered a judgment of $3,500 for personal injuries. After payment of the judgment, Edgefield Manufacturing Company brought this action on the

[58 S.E. 970]

insurance policy to recover $1,500; the insurance being limited to that amount for the death or injury of anyone person. The plaintiff recovered judgment for the amount claimed, and the defendant appeals. The plaintiff had been insured in the defendant company for several years, taking a new or renewal policy at the expiration of each term of insurance. At the trial, after proving that a thorough search had been made through the company's papers for the policy without finding it, the plaintiff offered in evidence as a copy, except as to dates, the policy issued for the preceding year. The defendant contends this paper should have been excluded for lack of evidence that a search had been made among the private papers of those who were officers of the company when the policy was in force, and for lack of sufficient evidence of the terms of the old policy being the same as the new.

1. The law requires search in the place where the paper is presumed to be. Culpepper v. Wheeler, 2 McMul. 66; Norris v. Clinkscales, 47 S. C. 488, 25 S. E. 797. According to the proof here, the insurance policies were kept in the vault of the plaintiff company, and there is no presumption that they were taken out and placed among the private papers of its retiring officers. There was ample evidence from defendant's own agent of the policy introduced being identical in terms with that sued on. It is evident the old policy was properly admitted. It is equally evident its exclusion would have been far from aiding the defense. The complaint alleged an insurance policy without mentioning any condition, except plaintiff's agreement "to give the defendant due and reasonable notice of any accident or any suit for damages arising from the same." The answer admits this allegation, "But for greater certainty prays reference to the said policy of insurance, " sets up certain...