Hartford Fire Ins. Co. v. Etheredge

• Decision Date: 25 September 1925
• Docket Number: 11838.
• Citation: 129 S.E. 428,132 S.C. 488
• Parties: HARTFORD FIRE INS. CO. v. ETHEREDGE ET AL.
• Court: South Carolina Supreme Court

129 S.E. 428

132 S.C. 488

HARTFORD FIRE INS. CO. v. ETHEREDGE ET AL.

No. 11838.

Supreme Court of South Carolina

September 25, 1925

Appeal from Common Pleas Circuit Court of Aiken County; J. K. Henry Judge.

Action by the Hartford Fire Insurance Company against J. C Etheredge and another. Judgment for plaintiff, and defendants appeal. Reversed, and new trial granted.

Cothran J., dissenting in part.

Williams Croft & Busbee, of Aiken, for appellants.

T. R Morgan, of Aiken, for respondent.

PURDY, A. A. J.

This action is based upon notes similar in character to the notes involved in a suit by the same plaintiff against L. M. Young, in which the opinion was filed September 3, 1925.

The complaints in the two cases are practically the same in form, but in this case the answer is very brief. It alleges that the delivery of the notes was conditioned upon the plaintiff's approving the notes and accepting defendants' application and issuing a fire insurance policy thereupon. It alleged a failure of consideration, in that the application was not accepted, the notes were not approved, and no policy was issued or delivered to the defendants.

In the case against Young, there was an application for insurance, with notes simultaneously given, in order to procure a policy of fire insurance. An application was made in this case by the defendants, and notes given by them of the same tenor and purport as in the case against Young, except that in this case the sum claimed is for a larger amount.

His honor, Judge J. K. Henry, presiding, refused to grant a nonsuit or direct a verdict in favor of the defendants, and directed a verdict for the plaintiff in the sum of $409.58.

The defendants have appealed on five exceptions. The first exception alleges an abuse of discretion on the part of his honor in not continuing the case on account of the illness of Mrs. Etheredge, one of the defendants. Counsel for the appellants draws a distinction between dealing with a mere witness in behalf of a litigant and one who is a witness as well as a party, and cites the case of Barnes v. Railway Co., 110 S.C. 261, 96 S.E. 530. Quoting in part from the argument of the appellants, and as taken from the Barnes Case:

"He is expected, not only to give evidence, but to assist counsel in the management of the case by advice and suggestion. A party to a suit that he prosecutes or defends, not only has the right to be present at the trial, but the supposition is that he will be present for the purpose of aiding and assisting in the protection of his rights."

This is undoubtedly true; but in this case it does not appear that the defendants were in any way put to a disadvantage on account of the absence of Mrs. Etheredge. True, her codefendant and husband naturally would desire to remain at home with her during her illness, but at the same time private inconvenience, even sometimes grievous, must give way to the public good and the prompt administration of justice, and this exception is overruled.

The third exception imputes error in allowing the witness, L. T Moorman, to testify to the custom of the plaintiff in its Atlanta, Ga, office. The witness was...