McBryde v. South Carolina Mut. Ins. Co.

• Decision Date: 21 July 1899
• Citation: 33 S.E. 729,55 S.C. 589
• Parties: McBRYDE v. SOUTH CAROLINA MUT. INS. CO.
• Court: South Carolina Supreme Court

33 S.E. 729

55 S.C. 589

McBRYDE v. SOUTH CAROLINA MUT. INS. CO.

Supreme Court of South Carolina

July 21, 1899

Appeal from common pleas circuit court of Greenville county; D. A Townsend, Judge.

Action by Mrs. F. C. McBryde against the South Carolina Mutual Insurance Company. From a judgment entered on a nonsuit plaintiff appeals. Reversed.

Wm. N Graydon and Haynesworth, Parker & Patterson, for appellant.

McCullough & Martin, for respondent.

GARY A. J.

The defendant is a corporation chartered, under the laws of this state, for the purpose of conducting the business of fire and life insurance on the assessment plan. On the 20th of November, 1897, the defendant issued a policy of insurance to the plaintiff on her dwelling house, in the county of Abbeville, for $200, and on the 22d of December, 1897, it insured the said property in the additional sum of $200. The dwelling house was totally destroyed by fire on the 31st of December, 1897, and this action was brought to recover the said insurance. His honor, the presiding judge, granted an order of nonsuit on grounds which will be hereinafter mentioned. The respondent's attorney virtually concedes in his argument that, if the rule laid down in the cases of Sample v. Insurance Co., 42 S.C. 14, 19 S.E. 1020 Copeland v. Assurance Co., 43 S.C. 26, 20 S.E. 754, Schroeder v. Insurance Co., 51 S.C. 180, 28 S.E. 371, and other recent cases as to waiver were applicable to this case, the circuit judge erred in granting the nonsuit. In 16 Am & Eng. Enc. Law, 17, 18, it is said: "The only distinction between contracts of mutual insurance and other insurance contracts consists in the fact that the liquidation of those of the former class is made from a fund obtained by periodical tax upon the members at stated intervals, or as required, while in other cases the amount stipulated to be paid to the beneficiary is absolute, and dependent only upon the success of the business and the ability of the insurer to pay the stipulated indemnity". In the same volume, at page 26, the following language from Bacon, Ben. Soc. § 78, is quoted with approval: "So far as corporations carrying on a life insurance business, either on the plan of annual, semi-annual, or quarterly premiums, and the accumulation of a reserve fund, or upon the new assessment plan, where calls are made as necessity requires, monthly, or less or more frequently, are concerned, it may be said that it is hard to conceive of any reason why such organizations should be governed by any rules different from those governing other corporations". Corporations carrying on the business of insurance on the assessment plan, or on the other plan just mentioned, have the same object in view,--there is the same necessity for intrusting the conduct of the business to a certain number of persons, and there is no reason why a more favorable rule should prevail in behalf of those conducting business on the assessment plan than those carrying on the business on a different plan. It is contended that a different rule was announced in the case of Joye v. Insurance Co., 54 S.C. 371, 32 S.E. 446. In that case the plaintiff failed to pay the assessments ordered in December, 1896, and on the 27th of January, 1897. She was notified on the 27th of February, 1897, that her policy was suspended for failure to pay the said assessments. The property was destroyed by fire on the 13th of March, 1897, and she did not forward the money to pay the assessments until after the fire. The nineteenth by-law was as follows: "All assessments must be paid within 30 days after written notice is mailed. If not paid, the policy shall be suspended and be liable to assessment until the policy is properly canceled. Suspended policies may be reinstated without extra cost by the assured paying back assessments, provided the property be in the same condition as when suspended". In that case the active energy of the policy had ceased to exist by operation of law, in pursuance of the express language of the contract, and the destruction of the property by fire made it impossible for the plaintiff to be reinstated to membership, in so far as that property was concerned. All the testimony as to waiver related to facts occurring after the property had been destroyed. Under these circumstances, there was no foundation upon which waiver could be predicated. This...