Graham v. American Fire Ins. Co. of Philadelphia

• Decision Date: 08 January 1897
• Citation: 26 S.E. 323,48 S.C. 195
• Parties: GRAHAM et al. v. AMERICAN FIRE INS. CO. OF PHILADELPHIA.
• Court: South Carolina Supreme Court

26 S.E. 323

48 S.C. 195

GRAHAM et al. v. AMERICAN FIRE INS. CO. OF PHILADELPHIA.

Supreme Court of South Carolina

January 8, 1897

Appeal from common pleas circuit court of Richland county; I. D Witherspoon, Judge.

Action by John M. Graham and another against the American Fire Insurance Company of Philadelphia. From a judgment for plaintiffs, defendant appeals. Affirmed.

The charge by Witherspoon, J., was as follows:

"You may think, Mr. Foreman, and gentlemen of the jury, that the trial of this case has occupied too much of the time of the court; but there are important issues involved, some of which, as far as I am aware, have never been settled by the supreme court of this state. You will bear in mind that when a party comes in court he is entitled to his day in court and it is counsel's privilege, and in fact it is their duty, to present their case, and the court should allow them a reasonable time for that purpose. All I have got to say in this connection, Mr. Foreman, is that, if this trial has been unnecessarily protracted, it is my fault, and not that of counsel. I have had the control and management of the case and I assume the responsibility, and there should be no prejudice attaching to counsel.

"Now, this is a case instituted by J. M. Graham and G H. Tilton against the American Fire Insurance Company of Philadelphia. The plaintiffs in this case seek to recover judgment on a fire insurance policy of one thousand dollars issued April 5, 1894, by the defendant insurance company to the plaintiff J. M. Graham. Now, Mr. Foreman, the issues before the court are presented by the plaintiffs' complaint, setting forth their cause of action, and the defendant's answer. Now, what cause of action, what grounds of complaint, do the plaintiffs set up to recover judgment against the defendant insurance company? Why, they allege that on the 5th of April of last year, in this city, the plaintiff G. H. Tilton was the owner of goods described in the policy of insurance; that co-plaintiff Graham was in the lawful and exclusive possession of the insured goods, under contract with plaintiff Tilton, charged with the sole custody and keeping of the goods, also charged with insurance of the goods against loss by fire. The plaintiffs further charge that Graham was to receive from Tilton an annual salary as superintendent of the plaintiff Tilton with reference to the management and business connected with these goods. They further allege that Allen Jones, as defendant insurance company's agent, issued to J. M. Graham the policy of insurance referred to in the complaint, upon the receipt from Graham of fifteen dollars as premium. The plaintiffs further allege that, at the time of the issuing of this policy of insurance, it was well known to the defendant company that the goods insured were owned by Tilton, and in the custody of Graham as Tilton's agent, and that the indorsement made upon the policy by the insurance company was for the benefit of both plaintiffs; that is, both Graham and Tilton. They further allege that the stock of goods was totally destroyed by fire, that the plaintiff sustained a loss of $4,649.42, that there was concurrent insurance of $3,000 on the stock of goods (that is, insurance in other companies), that the fire that destroyed the goods did not originate from any cause set forth in the policy, that they (the plaintiffs) have made demand upon the defendant company, and that the defendant company has refused to pay the policy, or any portion of the amount set forth. Now, in defendant's answer, they admit issuing the policy; they admit that Mr. Jones, as agent, received $15 from Graham; and they then set up and call attention to the fact that, according to the terms of the policy itself, it is issued to J. M. Graham on his stock of goods; and they further set up and call attention to the fact of the indorsement made by the company upon the policy. They further allege that certain conditions of the policy were not complied with, in this: that the policy contained this provision: This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material facts or circumstances concerning this insurance or the subject thereof; or, if the interest of the insured in the property be not truly stated therein, that this entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the interest of the insured be other than unconditional and sole ownership. The defendants further allege that J. M. Graham, the plaintiff, was not at the date of the issuing of the policy, nor at the time the loss occurred, the unconditional, sole owner of the property insured, as required by the terms of the policy to which I have just referred you, that J. M. Graham's interest was not truly stated, and that this fact did not come to the knowledge of the defendants until after the policy was issued. The defendant company denies that J. M. Graham had any insurable interest in the property insured.

"Mr. Foreman, I charge you that any one may insure property against loss by fire, in which he has an interest, the insurance of which is not forbidden by law on the ground of public policy. Now, what is this insurable interest? What interest does the law require in order to entitle the party who insures to recover loss upon the policy? Well, Mr. Foreman, as I find it stated in section 80, p. 144, 1 May, Ins., this principle is laid down: 'Whoever may fairly be said to have a reasonable expectation of deriving pecuniary advantage from the preservation of the subject-matter of insurance, whether that advantage inures to him personally, or as the representative of the rights or interests of another, has an insurable interest.' At the conclusion of the same section we find it stated generally: 'Persons charged, either specifically, by law, custom, or contract, with the duty of caring for and protecting property in behalf of others, or having a right so to protect such property, though not bound thereto by law, or who will receive benefit from the continued existence of the property, whether they have or have not any title to estate, any lien upon or possession of it, have an insurable interest.' Now, the test, as I understand it, and I so charge you as to this insurable interest,--what constitutes an insurable interest,--is, does the party insuring, does he at the time he takes out the policy of insurance, and at the time of the loss, bear such a relation to the property insured as would create a liability to pecuniary loss if the property was destroyed? If so, such a person has an insurable interest in the property. Now, Mr. Foreman, I was struck with the remark made by counsel for the defendant yesterday, and the propriety of it: Why do the insurance companies require the party insuring to have an interest in the property insured? It is to secure on the part of the party insured proper and reasonable care on his part to avoid the destruction of the property by fire,--that is the object of it,--therefore a reasonable requirement for the protection, not only of the insurance company, but of the persons who hold policies in that insurance company. Now, the defendant's counsel has requested me to charge you that the plaintiff Graham did not have an insurable interest in the property, under the written contract and the verbal testimony as to Tilton requiring Graham to insure the property. Under the authorities I have just cited, I cannot so charge you, because it appears from the written contract introduced in evidence that Graham was appointed by Tilton as superintendent to take charge of, protect, and preserve his property as best he could. That is the sum and substance of it. I do not pretend to quote the exact language. I haven't time to refer to it now. That is the substance of it. Now, when the plaintiffs come into court and rely, as they do, upon this policy to establish their right to recover judgment against the defendant, the burden is upon the plaintiffs, not only in this case, but every civil case, to show and satisfy the court and jury--that is, the jury as to the facts--that they are entitled to the relief that they seek, by what we call the 'preponderance of the evidence,'--the greater weight of the evidence. That greater weight is to be determined and ascertained by the jury, who are made the sole judges of the evidence. When you retire to your jury room to determine whether a certain matter of fact submitted to you has been established by the plaintiffs by the preponderance of the evidence, you take all the evidence bearing upon that point; you weigh it. It does not depend upon the number of witnesses upon the one side or the other, necessarily, but it is the weight you attach to the testimony by the witnesses, one or many, and in that way you are to decide. Now, the plaintiffs have requested me to charge you that if you believe from the evidence that Tilton put Graham in the lawful possession of the property (that is, the property insured), as his agent or superintendent, for the purpose of dealing with the property in the ordinary course of business, and that if Graham was under contract with Tilton to insure the property and keep the property insured, that Graham had an insurable interest in the property. I so charge you, gentlemen, under the authorities cited. I am also requested to charge you, by the plaintiffs, that if Graham had possession of the property, and sustained such relation to the property as that he might suffer pecuniary loss if the property was destroyed by fire, that Graham would have an insurable interest in the property. I so charge you. I have already substantially charged you that.

"Now, when plaintiffs submit this policy, that is the

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