Hankinson v. Piedmont Mut. Ins. Co.

• Decision Date: 29 June 1908
• Citation: 61 S.E. 905,80 S.C. 392
• Parties: HANKINSON v. PIEDMONT MUT. INS. CO.
• Court: South Carolina Supreme Court

61 S.E. 905

80 S.C. 392

HANKINSON v. PIEDMONT MUT. INS. CO.

Supreme Court of South Carolina

June 29, 1908

Appeal from Common Pleas Circuit Court of Aiken County; R. W Memminger, Judge.

Action by W. M. Hankinson against the Piedmont Mutual Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Croft & Croft and Carlisle & Carlisle, for appellant.

Davis Gunter & Gyles, for respondent.

POPE C.J.

On the 14th day of September, 1906, W. M. Hankinson, the plaintiff brought his action against the Piedmont Mutual Insurance Company, the defendant, to recover the sum of $500 on account of loss by fire under a policy of insurance issued by the defendant. The complaint set forth that the policy of insurance was issued on the 9th day of April, 1906, that in accordance with said policy all of its conditions were complied with but that the defendant had failed to pay the insurance.

The defendant in its answer admits its corporate character and the issuance of the policy referred to in the complaint, but denies that the plaintiff has complied with the conditions upon which it issued its policy of insurance. It claims that the stock was overestimated; that the insured failed to keep a complete itemized inventory of stock on hand- -failed to keep a complete record of his business in an iron safe, or some safe place where fire could not destroy them; that the contract of plaintiff was violated at the time of his application and statements to obtain insurance on his stock of goods by stating that there was no incumbrance on said property, whereas in fact there was a chattel mortgage thereon, and of these facts the defendant was ignorant at the time of issuing the policy; therefore denied its liability to pay the plaintiff anything. The trial came on before Judge R. W. Memminger and a jury at the fall term of court for Aiken county in 1907. After hearing of testimony on both sides and the charge of his honor to the jury, a verdict was rendered in favor of the plaintiff for $400. After entry of judgment the defendant appealed upon the following six grounds. In disposing of the same we will consider them in their numerical order:

1. "Because his honor erred in charging the jury as follows: 'I want to tell you in the outset, gentlemen of the jury, that if you believe from the testimony that this plaintiff, Mr. Hankinson, has perpetrated or committed a fraud on this insurance company by concealing from them material facts or misleading them fraudulently, then he should not recover anything, because the object of the law in these matters, and it is the law, is that between people who insure and the insurance company there should be nothing more nor less than common honesty or fair dealing, and that is all you want to bear in mind in solving the case here, that you have to decide what is common honesty and fair dealing between these parties. If you find it is on the side of the insurance company, you find for the insurance company, and if it is for the plaintiff, you should find for the plaintiff.' For it is submitted that said charge was not applicable to the case as there was no testimony on, nor was the question of fraud raised by the pleadings, and therefore it only tended to and in fact misled the jury, since it in effect inferred for them a line of defense not relied upon."

A careful examination of the holding of the circuit judge as set out in the foregoing will show that there was no error as complained of by the defendant. The defendant had set up the defense of conscious failure of duty on the part of the plaintiff. No judge should hesitate a moment in characterizing such conduct not only as unbecoming, but as wanting in the elements of right doing by any plaintiff. It is not necessary that a placard should be placed charging fraud when discussing fraudulent practices; and no apology is necessary in defense of a judge when he lays down the duty of right doing by a plaintiff. We therefore overrule unhesitatingly this ground of appeal.

2. "Because his honor erred in refusing to charge the defendant's ninth request to charge, which is as follows: ' Ninth. If the jury find that G. C. Carpenter was the agent of the defendant company and actually knew of the alleged mortgage said to be on the plaintiff's stock of goods, and told him to pay it off before the policy was issued, and that he did not agree for it to remain on the stock of goods after the policy was issued, then such act of Carpenter's, though he may have been the defendant's agent, would not be a waiver, and your verdict should be for the defendant company.' For it is submitted that said request was a hypothetical statement of facts, for the reason that the whole illustration was prefaced by the conjunction 'if,' and it should have therefore been charged, because, in a question of waiver, the judge may illustrate to the jury by way of a hypothetical case what facts constitute waiver, especially when only one inference could be drawn from these facts."

It is disclosed by the testimony offered at the hearing, both that of the plaintiff himself, and of the agent of the defendant company, G. C. Carpenter, that while the application was in course of preparation, when an inquiry was made by Carpenter of plaintiff if there was any lien upon the property proposed to be insured, plaintiff frankly stated that there was a small mortgage of $175, which said mortgage was then on record in the office of R. M. C. of Aiken county in February, 1906; but that the plaintiff had the money in hand sufficient to discharge said incumbrance, and Carpenter, as the agent of the defendant, then answered this question asked in the policy that there was no incumbrance. As to what Carpenter might have thought the plaintiff would do in applying his cash to the immediate cancellation of said mortgage no declaration was made by him, either in the policy itself or in the conversation between the two parties. The circuit judge was therefore correct in his unwillingness to make the charge as requested by the defendant. What the jury needs in reaching a verdict is facts, and not surmises. This exception is overruled.

3. " Because his Honor the presiding judge erred in charging the jury as...