Mcgrath v. Piedmont Mut. Ins. Co

• Decision Date: 07 April 1906
• Court: South Carolina Supreme Court
• Parties: McGRATH. v. PIEDMONT MUT. INS. CO.

54 S.E. 218
74 S.C. 69

McGRATH.
v.
PIEDMONT MUT. INS. CO.

Supreme Court of South Carolina.

April 7, 1906.

1. Insurance—Actions Against Company-Venue.

Domestic corporation chartered as a mutual protection association, under Code Laws 1902, § 1912 et seq., was required in its certificate to state the place of its principal place of business. The statute further provided that it might sue and be sued, plead and be impleaded, in all courts of law and equity. Held that, in the absence of a provision requiring suit in the county where its principal office was located, it could be sued in any county in which there was an agent authorized to solicit applications for insurance, collect premiums, give receipts, and collect information.

2. Same—Declarations of Agent.

Under a charter of a mutual insurance company, providing that written applications for insurance shall not constitute a contract until accepted by the home office, and that insurance shall be issued only to members, declarations of soliciting agent that insurance began from the date of the receipt of the premium cannot be considered.

3. Trial — Instructions — Weight of Evidence.

In an action on an insurance policy, an instruction that the receiving through the mails, and filing in the office, may or may not be an acceptance of the application, is an instruction on the weight of the evidence.

[Ed. Note.—For cases in point, see vol. 46, Cent. Dig. Trial, §§ 439, 441, 443.]

Appeal from Common Pleas Circuit Court of Abbeville County; Klugh, Judge,

Action by Sallie McGrath against the Piedmont Mutual Insurance Company. Judgment for defendant, and plaintiff appeals. Reversed.

Carlisle & Carlisle, for appellant.

Wm. N. Graydon, for respondent.

JONES, J. The plaintiff brought this action on an alleged contract of fire insurance, and recovered judgment against defendant for $200.

1 The defendant first raises the question whether the circuit court for Abbeville county had jurisdiction to try this case. The summons was served upon one J. P. Smith at McCormick, in Abbeville county, as an agent of defendant company, but did not reach the principal office of defendant corporation in Spartanburg, S. C, until after the time for answering had expired. Judgment by default was taken against defendant and thereafter a motion was made before Special Judge McDonald for leave to answer on two grounds: (1) That the court in Abbeville county had no jurisdiction, as defendant corporation was a resident of Spartanburg county and did not maintain any office for transacting business in Abbeville county; (2) that defendant's neglect to answer was excusable. Judge McDonald sustained the second ground and opened the default and granted defendant leave to answer within 20 days; but, as to the first ground, Judge McDonald, under authority of Glaize v. Railroad Co., 1 Strob. 70, and Boyd v. Railroad Co., 65 S. C. 326, 43 S. E. 819, held that the court for Abbeville county had jurisdiction. The defendant answered to the merits, but, on the trial before Judge Klugh and a jury, and at the close of the testimony, again raised the question of the court's jurisdiction on a motion for nonsuit. Judge Klugh declined to grant the motion. Jurisdiction has two aspects: Jurisdiction of the person, and jurisdiction of the subject-matter. In so far as jurisdiction of the person is concerned, it is settled by numerous cases that a general appearance or answer to the merits is a waiver of such objection to jurisdiction. Garrett v. Herring Co., 69 S. C. 278, 48 S. E. 254. When, however, jurisdiction of the...