Lamb v. Metropolitan Mut. Fire Ins. Co.

• Decision Date: 16 April 1937
• Docket Number: 14468.
• Citation: 191 S.E. 56,183 S.C. 345
• Parties: LAMB v. METROPOLITAN MUT. FIRE INS. CO.
• Court: South Carolina Supreme Court

191 S.E. 56

183 S.C. 345

LAMB v. METROPOLITAN MUT. FIRE INS. CO.

No. 14468.

Supreme Court of South Carolina

April 16, 1937

Appeal from County Court of Richland County; A. W. Holman, Judge.

Action by M. C. Lamb against the Metropolitan Mutual Fire Insurance Company. From an adverse judgment, plaintiff appeals.

Affirmed.

Amended complaint and order of Judge Holman directed to be reported follow:

Amended Complaint.

M. C Lamb, as plaintiff in the above-entitled action, complaining of the Metropolitan Mutual Fire Insurance Company, a corporation, as defendant, therein alleges:

1. That the plaintiff is now, and was at all times herein mentioned a citizen and resident of the city of Columbia, county of Richland, and state of South Carolina, and that the defendant is, and was at all times herein mentioned, a corporation under the laws of the state of South Carolina engaged in the insurance business.

2. That on the 9th day of April, 1936, the defendant issued its standard fire and windstorm insurance policy No. 202032 to the plaintiff herein, whereby the defendant insured the furniture and fixtures in the plaintiff's mercantile establishment in the city of Columbia at 1317 West Lincoln street, in the sum of $400 and wherein the defendant did insure the plaintiff's stock of merchandise in said building in the sum of $110.

3. That on the 18th day of April, 1936, and at about 4 o'clock a m. of the said day, the storehouse in which the plaintiff was doing business and wherein was located the plaintiff's furniture, fixtures, and stock of goods, as aforesaid insured as aforesaid, was totally destroyed by fire, and the plaintiff suffered and sustained a total loss of his furniture, and fixtures, and stock of goods in the sum of $510, insured as aforesaid whereby the defendant became, was and now is indebted to the plaintiff under the said policy of insurance in the sum of $510, and the plaintiff alleges that all times have passed, and all things have happened, whereby the defendant should have paid the plaintiff the sum of insurance, but notwithstanding, the defendant has refused and still refuses to pay the plaintiff the said sum, or any sum.

Wherefore, plaintiff sues the said defendant and demands verdict and judgment against the said defendant in the sum of $510, and for the costs of this action.

And for a second cause of action:

The plaintiff realleges and affirms paragraphs numbered 1 and 2 as alleged in his first cause of action.

3. Plaintiff alleges that the defendant now claims and pretends, and offers as an excuse for nonpayment of its liabilities to the plaintiff under the aforesaid policy of insurance, that certain of the plaintiff's furniture and fixtures were at the time of the issuance and delivery of the said policy under retain title contract with the vendors thereof which said contract, in legal effect, was a mortgage upon the said furniture and fixtures under said retain title contract, and the plaintiff alleges that, in fact, certain of the said furniture and fixtures were at the said time under retain title contract, but in this connection, the plaintiff further alleges that the defendant at the time of the issuance and delivery of the said policy well knew, that certain of the said furniture and fixtures were under retain title contract and well knew each and every item thereof which was under retain title contract and well knew the several amounts of the purchase price thereof then remaining unpaid, and the plaintiff warned and advised the defendant of the then existing status of the said furniture and fixtures and insisted that notation thereof be made by the defendant, and requested the defendant to make provision in its said policy whereby the status of the said furniture and fixtures so under retain title contract might be provided for and against, but the defendant steadfastly refused to consider the said status of the said furniture and fixtures so under retain title contract, and informed this plaintiff that the said status with respect to the amounts remaining due upon the purchase price thereof was too insignificant, and of such small amount, as that the defendant preferred to take no regard thereof, and to make no provision therefor, but upon the contrary, waived any and all questions that might arise under the said insurance policy with reference to the said status of the said furniture and fixtures so under retain title contract, and the plaintiff now alleges that any and all excuse and pretense by the defendant as to its non-liability under the said policy with respect to the said furniture and fixtures, and the retain title contract therefor, is a willful and wanton disregard of this plaintiff's rights, and of the defendant's said waiver, and is done, and pretended, in a well formulated scheme, purpose, and design to defraud this plaintiff of moneys due to him under the said policy of insurance by the said defendant, and the plaintiff is thereby injured and damaged in the sum of $2,490.

Wherefore, plaintiff sues the defendant and demands verdict and judgment against the said defendant in the sum of $2,490, and for the costs of this action.

Order of Judge Holman.

The plaintiff brought a complaint against the defendant in August, 1936, which was served upon the defendant on the 12th day of August, 1936. The defendant, on August 27th, demurred to this complaint and on August 31 the plaintiff served upon the defendant an amended complaint. This amended complaint was served within the time required by law. The defendant again demurred to the complaint by its demurrer dated September 17, 1936. This demurrer was upon several different grounds. The second ground is that there is another cause of action pending, but I hold that the amended complaint, having been served within the twenty-day period, that this ground of demurrer is untenable. The demurrer further raises the question that two cause of action are improperly joined, one ex contractu and one ex delicto, the one for the amount due under the policy and the other for alleged fraud in connection with the matter. This last cause of action demands punitive damages. Under the South Carolina decisions, if two causes of action are improperly...