Montalbano v. Automobile Ins. Co. of Hartford, Conn.

• Decision Date: 27 December 1950
• Docket Number: No. 16448,16448
• Citation: 62 S.E.2d 829,218 S.C. 367
• Court: South Carolina Supreme Court
• Parties: MONTALBANO v. AUTOMOBILE INS. CO. OF HARTFORD, CONN.

Page 829

62 S.E.2d 829

218 S.C. 367

MONTALBANO v. AUTOMOBILE INS. CO. OF HARTFORD, CONN.

No. 16448.

Supreme Court of South Carolina.

Dec. 27, 1950.

McLeod & Shore, Sumter, for appellant.

C. M. Edmunds, John S. Hoar, Sumter, for respondent.

FISHBURNE, Justice.

In a former action between the same parties, brought in a Moagistrate Court to enforce the collection of an insurance policy issued to the respondent by appellant, insuring his dog against certain specified risks and perils, it was held by this court that the policy did not cover poisoning. It was further held that parol evidence was not admissible to establish that appellant's agent allegedly represented to respondent that the policy did cover this risk. Montalbano v. Automobile Ins. Co. of Hartford, Conn., 217 S.C. 157, 60 S.E.2d 77. The respondent was consequently defeated in that action and thereafter he commenced this action for a reformation of the policy contract, and recovery thereunder as reformed. He is now met by the objection that he has already hadhis day in court as respects the subject of this litigation, and that the former judgment is a bar to this action.

Appellant by its answer, alleges that respondent, having sought an inconsistent remedy in the first cause, when in full possession of all the facts, made an election of remedies, and is now estopped to recover in this action. The circuit court sustained the demurrer interposed by respondent to this defense, held that there was no election, and that the respondent is not estopped to bring the current action. This appeal followed.

It was stated in the opinion of this court in the former case, Montalbano v. Automobile Ins. Co. of Hartford, Conn., 217 S.C. 157, 60 S.E.2d 77:

'The controlling issue in this case is the meaning and legal effect of the terms and provisions of the insurance contract entered into between the parties. This in turn gives rise to the question of the competency of certain evidence given by appellant and admitted over the objection of the respondent.

'On trial of the cause, after introducing the policy in evidence, the appellant testified that he read the policy, but that he and the agent were both in doubt as to whether its provisions included death by poisoning. The negotiating agent, after conference with another agent of the company, returned to the appellant's place of business and, according to appellant's testimony, assured him that the policy would cover death of the dog from this cause. Upon this assurance, he accepted it. The foregoing testimony was objected to by the respondent (defendant), but the magistrate ruled that the perils insured against, and the exceptions as provided in the written contract of insurance, were ambiguous. Upon this ground, the parol testimony objected to was admitted as competent.'

On this evidence, the jury rendered a verdict for respondent. But upon appeal, the circuit court ruled that the foregoing testimony was improperly admitted, and as the policy did not cover poisoning, dismissed the complaint. As stated, this ruling was affirmed.

It is soundly stated in 18 Am.Jur., Sec. 10, Page 133: 'Election is predicated on the existence of a state of facts that furnishes the party an option to do either the one thing or the other. There must be the possibility of the adoption or rejection of a theory of action. This principle applied to the doctrine under consideration gives us the well-established proposition that an election of remedies presupposes a right to elect. There must be present such a condition of facts as affords the party a choice of remedies inconsistent in character, as where a choice lies between remedies at law and in equity or where a suit may be brought on a given state of facts either on contract or in tort or by attachment or replevin. If in truth there is only one remedy, and not a choice between two or more, the doctrine of election does not apply, as where a party misconceives his remedy and the one on which he expected to rely was never available to him * * *.'

We think it clear that although respondent in his law action before the magistrate, relied upon the insurance contract as written, yet in reality he contended for such a construction as would make the policy conform to the contract he sought to prove by the testimony ruled inadmissible. He had only one remedy and that was in equity. It is obvious that the respondent in both suits relied upon the same facts respecting the policy. 18 Am.Jur., Sec. 33, Page 154; Northern Assurance Company v. Grand View Bldg. Ass'n, 203 U.S. 106, 27 S.Ct. 27, 51 L.Ed. 109.

The doctrine of election of remedies is applicable only where there are two or more co-existent remedies available to the litigant at the time of the election which are repugnant and inconsistent each to the other. McMahan v. McMahan, 122 S.C. 336, 115 S.E. 293, 26 A.L.R. 1295. This rule is upon the theory that, of inconsistent remedies, the pursuit of one...