Gaillard v. Globe & Rutgers Fire Ins. Co., 13155.

CourtUnited States State Supreme Court of South Carolina
Citation158 S.E. 727,160 S.C. 386
Docket Number13155.
Decision Date25 May 1931

Appeal from Common Pleas Circuit Court of Sumter County; T. J Mauldin, Judge.

Action by C.J. Gaillard and another against the Globe & Rutgers Fire Insurance Company. Judgment for plaintiffs, and defendant appeals.

Reversed and remanded, with directions.

Joseph L. Nettles, of Columbia, and Wendell M. Levi, of Sumter, for appellant.

Purdy & Bland and L. D. Jennings, all of Sumter, for respondents.


Action upon a fire insurance policy issued August 26, 1925, in the sum of $1,500, expiring August 26, 1926, upon a store building in the town of Dalzell, in Sumter county, at that time the property of the plaintiff C.J. Gaillard, the loss payable to the plaintiff bank, which was a mortgagee of Gaillard to the extent of $2,500.

On December 29, 1925, Gaillard sold his mercantile business and the lot, upon which were located a dwelling house and the insured store building, to one L. K. Jackson for $3,000 Jackson assuming payment of the bank's mortgage, and going into immediate possession.

On May 11, 1926, during the apparent life of the policy, the store building, in possession of Jackson, was destroyed by fire.

Neither Gaillard nor Jackson notified the insurance company of the conveyance of the property by Gaillard to Jackson.

Upon proofs of loss being submitted to the company, liability upon the policy was denied by reason of the following provision in the policy: "This entire policy shall be void unless otherwise provided by agreement in writing added hereto *** if any change other than by the death of an insured take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard)."

The case was tried by his honor, Judge Mauldin, and a jury. Upon the defendant's motion for a directed verdict and in his charge to the jury, his honor held that the quoted provision was a valid condition and constituted a bar to a recovery on the policy unless the company had waived the condition; that that was an issue for the jury. The jury returned a verdict in favor of the plaintiffs for the full amount of the policy and from the judgment entered thereon the defendant has appealed.

The question upon appeal therefore is whether the testimony discloses any evidence from which the jury could have been justified in concluding that the company had waived the condition.

The only evidence upon this point was the testimony of Mrs. Gaillard, the wife of the insured; she testified that the latter part of January, 1926, before the fire in May, 1926, she was in Sibert's Drug Store in the city of Sumter one afternoon and Mr. Moses, the agent of the company who had issued the policy, came into the drug store; that he asked her how business was at Dalzell; that she told him that they were not at Dalzell; that he asked her, "Are you still running the business at Dalzell?" That she answered, "No, we sold out there; we sold our house and lot and store to Mr. Jackson."

It will be observed that this conversation occurred after the breach of the condition; the policy at that time was defunct.

There are several reasons why it cannot be considered as evidence of the waiver of a condition which already had avoided...

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