Joye v. South Carolina Mut. Ins. Co

• Decision Date: 14 March 1899
• Parties: JOYE. v. SOUTH CAROLINA MUT. INS. CO.
• Court: South Carolina Supreme Court

32 S.E. 446

(54 S.C. 371)

JOYE.

v.SOUTH CAROLINA MUT. INS. CO.

Supreme Court of South Carolina.

March 14, 1899.

Mutual Insurance — WaiveR of Conditions— Adjustment—Promise to PaY.

1. An insurer does not waive a condition of a policy by adjusting the loss after insured has stipulated in his proof of loss that such adjustment shall not be considered a waiver of any of insurer's rights.

2. A mutual fire insurance company does not waive a right to claim a forfeiture for insured's failure to pay assessments before the loss by writing that the loss would be paid, where a subsequent letter is sent, denying all liability, before there was any change in insured's condition after receipt of the first letter.

Appeal from common pleas circuit court of Sumter county; Ernest Gary, Judge.

Action by Lina E. Joye against the South Carolina Mutual Insurance Company on an insurance policy. From an order for nonsuit, plaintiff appeals. Affirmed.

Purdy & Reynolds, for appellant

Joseph A. McCullough and Haynsworth & Hayns-worth, for respondent

POPE, J. After the plaintiff had offered her testimony, the defendant moved the court to grant a nonsuit. The circuit judge granted the motion upon the ground that the testimony showed that the contract sued on at the time of the loss was suspended for nonpayment of assessments, and furnished no cause of action against the defendant The plaintiff now appeals from such order for nonsuit on the following grounds, to wit: (1) In that such order deprived the plaintiff of the right to show waiver or estoppel on the part of the defendant to make the objection that the policy sued on had been suspended for nonpayment of assessments. (2) In that the plaintiff was, by such order, denied the right to show waiver or estoppel on the part of the defendant of its right to insist on claiming that policy either was suspended or forfeited; and, the waiver being a question of fact for the jury, there was error in not allowing the plaintiff to show waiver if she could. (3) In that it appeared that there was not only testimony tending to show waiver, but that there were acts of the defendant showing a complete waiver of suspension and forfeiture, such as (a) adjusting the loss; (b) promising, on April 22, 1897, by letter, to pay the loss, —all with full knowledge of the alleged suspension, and these were questions of fact which should have been submitted to the jury.

The cause of action set out by plaintiff was the duty owed to her by the defendant, a mutual insurance company, to pay a policy issued by said company to protect a stock of goods, owned by the plaintiff, from fire, to the amount of?1, 000, which said stock of goods was destroyed by fire on the night of the 13th March, 1897, and which loss, alter demand and proof of loss, defendant refused to pay. We have examined the case with great care, for, while a contract for insurance is nothing but a contract between parties in its last analysis, still it involves very nice care in giving a proper construction because of stipulations outside of the paper embodying in general terms such contract. Here, for...