Montalbano v. Automobile Ins. Co. of Hartford, Conn., No. 16448

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtFISHBURNE; BARKER
Citation62 S.E.2d 829,218 S.C. 367
PartiesMONTALBANO v. AUTOMOBILE INS. CO. OF HARTFORD, CONN.
Decision Date27 December 1950
Docket NumberNo. 16448

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.

[218 S.C. 368] 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 [218 S.C. 369] 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

Page 830

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.'

[218 S.C. 370] 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....

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2 practice notes
  • Kaiser v. Carolina Life Ins. Co., No. 16517
    • United States
    • United States State Supreme Court of South Carolina
    • June 26, 1951
    ...(Emphasis added.) There cited is the annotation in 125 A.L.R. 1060. Indeed, our last case on the subject, Montalbano v. Auto. Ins. Co., 218 S.C. 367, 62 S.E.2d 829, was for reformation of policy upon the life of a dog. Many decisions from other courts may be found by reference to the footno......
  • Freeman v. McBee, No. 0088
    • United States
    • Court of Appeals of South Carolina
    • February 21, 1984
    ...to take judicial notice of what was stated in a former opinion in a prior action of the same case. Montalbano v. Automobile Ins. Co., 218 S.C. 367, 62 S.E.2d 829 (1950). Thus, it was proper for the court to take judicial notice of the consent to dismiss with prejudice in its own order issue......
2 cases
  • Kaiser v. Carolina Life Ins. Co., No. 16517
    • United States
    • United States State Supreme Court of South Carolina
    • June 26, 1951
    ...(Emphasis added.) There cited is the annotation in 125 A.L.R. 1060. Indeed, our last case on the subject, Montalbano v. Auto. Ins. Co., 218 S.C. 367, 62 S.E.2d 829, was for reformation of policy upon the life of a dog. Many decisions from other courts may be found by reference to the footno......
  • Freeman v. McBee, No. 0088
    • United States
    • Court of Appeals of South Carolina
    • February 21, 1984
    ...to take judicial notice of what was stated in a former opinion in a prior action of the same case. Montalbano v. Automobile Ins. Co., 218 S.C. 367, 62 S.E.2d 829 (1950). Thus, it was proper for the court to take judicial notice of the consent to dismiss with prejudice in its own order issue......

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