L. T. Madden & Co v. Phoenix Assurance Co

• Citation: 70 S.C. 295,49 S.E. 855
• Court: United States State Supreme Court of South Carolina
• Decision Date: 30 November 1904
• Parties: L. T. MADDEN & CO. v. PHOENIX ASSURANCE CO.

49 S.E. 855
70 S.C. 295

L. T. MADDEN & CO.
v.
PHOENIX ASSURANCE CO.

Supreme Court of South Carolina.

Nov. 30, 1904.

INSURANCE—WAIVER OF PROOFS—IRON-SAFE CLAUSE—OTHER INSURANCE—PLEADING—DEFENSE—EVIDENCE.

1. In an action on an insurance policy, where there was evidence that at the request of the insured an agent of the insurer came to the scene and informed insurer that the matter would be adjusted, and the adjuster refused to assist in making up proofs of loss according to the promise of the insurer, and the proofs executed were found defective by the insurer, and liability was denied because the policy was void, as to whether proofs of loss were waived was for the jury.

2. Where at the time of making an application for insurance the insured showed an inventory of the goods to the agent of the insurer, who said it was all right, the insurer thereby waived the right to insist that the inventory did not conform to the iron-safe clause of the policy.

3. Where there was some evidence that the books and inventory were kept in a fireproof safe, and were produced for the inspection of the company after the loss, the question of compliance with the iron-safe clause is for the jury.

4. An agent of an insurance company issued a policy having knowledge that another company, of which he was also agent, had a policy on the same goods, issued by his predecessor. Held, that his knowledge would be imputed to the latter company, and on its failure to cancel the policy tended to show waiver of a provision prohibiting other insurance.

5. In an action on an insurance policy, where defendant claimed that plaintiff in his application made false statements as to when the inventory of the stock had been taken, testimony was competent to show good faith on the part of plaintiff, and that misstatement as to the date was a mistake.

6. Where in an action on a policy, plaintiff alleges ownership of the property destroyed in himself, the insurance company under general denial may prove ownership in another.

7. In an action on an insurance policy, under general denial of allegation that the fire did not happen through the fault or negligence of plaintiff defendant may show that plaintiff burned his own property.

[49 S.E. 856]

8. Error in admitting immaterial evidence is not ground for reversal.

9. A salesman who has had experience in merchandising and has inspected a stock of goods is qualified to testify as to its value.

Appeal from Common Pleas Circuit Court of Laurens County.

Action by L. T. Madden & Co. against the Phoenix Assurance Company. Judgment for defendant, and plaintiffs appeal. Reversed.

Johnson & Nash and W. R. Richey, for appellants.

Ferguson & Featherstone and King, Spalding & Little, for respondent.

GARY, A. J. This is an action for the recovery of $1,200 on a policy of insurance issued by the defendant to the plaintiffs 1st September, 1904, on their stock of goods at Cross Hill, S. C., which was destroyed by fire on the 12th day of June, 1902. The defendant answered the complaint, denying the material allegations thereof, and interposing the following defense: "That the plaintiffs violated the terms and conditions set forth in the policy of insurance in the following particulars: (1) That they failed to keep and furnish the defendant the inventories and books provided for in said policy, and to keep the same in an iron safe or other safe place, as therein provided. (2) That they took out other and further insurance on the stock of goods covered and other property covered by their contract with the defendant without defendant's consent, thereby making the contract with defendant null and void. (3) And, further, that at the time defendant's policy was issued the plaintiffs had other insurance on their stock of goods, of which fact they failed to notify defendant. (4) That the plaintiffs, in their application for insurance, made sundry false representations as to value of stock on hand when the inventory had been taken, other insurance thereon, and as to fires previously had by them, thereby rendering the policy issued to them by defendant null and void." After all the testimony for both sides in this case had been taken, the defendant moved the court to instruct the jury to write a verdict for the defendant on the following grounds: (1) Because, under the proof of this case, the undisputed proof has been a failure to furnish such proof of loss as the law required by the written contract of the insurance policy, which was before the court (2) There has been a total breach of what is known as the "iron-safe clause' before the court. (3) There is in existence other insurance without notice within contemplation of the policy." After argument the court ruled as follows: "I am satisfied the case is fatal on all three grounds, and I will have to instruct a verdict for the defendant"—which he did. The plaintiffs appealed, assigning errors on the part of his honor the circuit judge in directing a verdict, and on other grounds set forth in the exceptions.

We proceed to the consideration of those exceptions assigning error in directing a verdict on the first ground mentioned. There was testimony introduced to establish the following facts: Immediately after the fire the plaintiff wrote to J. W. Spence, the agent of the defendant, giving him notice of the fire, and requesting him to come to Cross Hill. The plaintiffs had policies of insurance on their stock of goods in two companies. J. W. Spence came, and in the course of conversation said to P. H. Madden that he would have the whole matter adjusted; that he need not put himself to any trouble; that he would ask the agent of the other company to let one man adjust the loss under both policies. Spence told the plaintiffs to write to L. R. Warren at Richmond, Va., who was the adjusting agent of the company. On the 11th of July, 1902, the plaintiffs wrote to the defendant as follows: "Cross Hill, S. C, July 11, 1902. Phoenix Assurance Company —Gents: We send you statement what was lost on June 12th, 1902, on Policy No. 5625260. We had on September the 1, 1901, date of policy, amount of goods $2,029.47; bought since $1,800.49. We lost $2,380.85. This is correct. Yours truly, L. T. Madden & Co. P. S. How the fire started is not known." The letter was sworn to before a notary public. On the 6th of August, 1902, the plaintiffs wrote to L. R. Warren, and likewise to the company, stating that they had not heard from the defendant, and requesting a reply. On the 14th of August 1902, the plaintiffs wrote a letter to L. R. Warren, the adjusting agent, giving the same information in the same words as was contained in their letter of July 11, 1902, and stating...