Edgefield Mfg. Co. v. Maryland Cas. Co.

• Decision Date: 31 August 1907
• Citation: 58 S.E. 969,78 S.C. 73
• Parties: EDGEFIELD MFG. CO. v. MARYLAND CASUALTY CO.
• Court: South Carolina Supreme Court

58 S.E. 969

78 S.C. 73

EDGEFIELD MFG. CO. v. MARYLAND CASUALTY CO.

Supreme Court of South Carolina

August 31, 1907

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 employés. 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 insurance policy to recover $1,500; the insurance being limited to that amount for the death or injury of any one 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 conditions not referred to in the complaint, and alleges plaintiff's failure to comply with them. Actual proof of the policy, therefore, was not requisite to make out the cause of action. The admission of the copy was of no consequence to the plaintiff, but was essential to the defense in proving the conditions set up in the answer.

3. The next question arises under the following clause of the answer: "No action shall lie against the company as respects any loss under this policy, unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment within 60 days from the date of such judgment, and after trial of the issue. No such action shall lie unless brought within the period within which a claimant might sue the assured for damages unless at the expiry of such period there is such an action pending against the assured, in which case an action may be brought against the company by the assured within 60 days after final judgment has been rendered and satisfied as above. The company does not prejudice by this clause any defenses to such action which it may be entitled to make under this policy." The policy covered the year beginning May 6, 1903, and ending May 6 1904. Jennings received his injury October 21, 1903, brought his action January 6, 1904, and recovered judgment in November, 1904. The remittitur from the Supreme Court was sent down October 19, 1905. The plaintiff paid the judgment October 24, 1905, and brought this action January 23, 1906. The suit was not brought within 60 days after the final judgment, and the defendant contends this is fatal. The circuit judge construed the first sentence of the condition of the policy, above quoted, to mean payment must be made by the assured of any judgment in favor of an employé for personal injury within 60 days from the date of the judgment. Nothing about this section of the policy is clear except the obscurity. The language will fairly bear the construction placed on it by the circuit judge. The insurer framed the clause as a condition of its liability, and obscurity and ambiguity will be solved against it. Sample v. Insurance Co., 46 S.C. 491, 24 S.E. 334, 47 L. R. A. 696, 57 Am St. Rep. 701; Moulor v. Am. Ins. Co., 111 U.S. 335, 4 S.Ct. 466, 28 L.Ed. 447. On this principle, the charge of the circuit judge on this point must be sustained. Inasmuch as the record in the clerk's office showed the payment of the judgment in less than 60 days after the final judgment of the Supreme Court, this stipulation of the policy disappears as a defense, and the giving or refusing an instruction as to the validity of such conditions could be of no consequence.

3. The defendant submits, in the next place, it was relieved from liability by failure of the plaintiff to comply with the first of these additional stipulations in the policy "The assured upon the occurrence of an accident shall give immediate written notice thereof, with the fullest information obtainable at the time to the home office of the company at Baltimore, Md., or to its duly authorized agent. H...