Montgomery v. Delaware Ins. Co. of Philadelphia

Decision Date18 April 1899
Citation32 S.E. 723,55 S.C. 1
PartiesMONTGOMERY v. DELAWARE INS. CO. OF PHILADELPHIA.
CourtSouth Carolina Supreme Court

Appeal from common pleas circuit court of Marion county.

Action by J. D. Montgomery against the Delaware Insurance Company of Philadelphia. There was a judgment for plaintiff, and defendant appeals. Reversed.

Willcox & Willcox, for appellant.

Johnson & Johnson, for respondent.

JONES J.

The defendant company appeals from a judgment against it in favor of plaintiff, upon a complaint alleging a contract of insurance, whereby, on January 24, 1896, for one year defendant, in consideration of a premium of $17.50, insured against loss or damage by fire, plaintiff's printing press, composing stones, stands, types, and other material and appliances usual to the printing business situated in the town of Marion, S.C. The special defense made by defendant was that the property was so insured "while located in the two-story frame, shingle-roof building, on the west side of Main St., in said town, and that said property was, without the consent of defendant, removed therefrom to a different building, where it was burned." The plaintiff alone offered testimony in the case, which was to the effect that no written or printed policy was ever issued and delivered to plaintiff, but that he paid the premium to defendant's agents for such insurance, leaving them to deliver the policy thereafter. That on the agents' policy register the property was entered as insured under policy No 274,373, and described as located in these words: "All in two-story frame and shingle-roof building on west side of Main St., Marion, S. C.;" and in the agents' "Daily Report" to the company mailed January 24 1896, it was so described. In plaintiff's "Proofs of Loss" claim was made under policy No. 274,373, "according to the terms and conditions printed in said policy," in which plaintiff described the property as located as above stated, and in said proofs of loss is this statement: "The building described, or containing the property described, in said policy, was occupied at the time of the fire as stated in said policy, and for no other purpose whatever. a fire occurred on the 2d day of December, 1896, *** by which the property described by said policy, and situate as therein named, was destroyed, etc. That this "Proof of Loss" was made out by defendant's agents, and was signed by plaintiff without attention being directed to the statement as to the location of the property. It appeared that plaintiff the year previous insured the same property at the agency of Montgomery & White, then also acting as agents for defendant, in same company, and at that time the property was located as above described, in the building known as the "McKerall Building," where the rate was 5 1/2 and that after some three months plaintiff removed said property to a one-story frame and shingle-roof building on the west side of Main street, known as the "Clark Building," and secured from Montgomery & White a rebate. Defendant's agent White stated that he knew the property had been moved from the McKerall Building to one of less risk, and that he had paid a rebate therefor to plaintiff, but he was not positive as to the time of the removal; that he had paid no rebate from the premium received for the insurance in question, and did not remember any other policies; and that the rate paid for the insurance in this case was the rate of the Clark Building (3 1/2, and not the rate of the McKerall Building (5 1/2. On the other hand, plaintiff was positive that at the time of the insurance in this case the property was located in the Clark Building, and that the description locating it in the McKerall Building was a mistake. But it further appeared, from undisputed testimony, that after the insurance the property was removed to the Harllee Building, and then later to the Stack house Building, where it was burned on December 2, 1896. There was also some evidence tending to show that, while no application was made to defendant's agents for consent to removal, they had knowledge of the removal, but neither did nor said anything about it; that the premium paid to the defendant's agents at the time of the insurance was remitted to defendant after the fire, and was retained by defendant; that defendant's adjuster after the fire, and with full knowledge of the removal, stated to plaintiff that he would not make the matter of removal a question, and thereafter endeavored to adjust the loss with plaintiff, the only difference between them being as to the value of the printing press; that, in the protracted negotiations for settlement thereafter, the defendant never raised any question as to the removal, which was raised for the first time in the answer filed; and that the only reason offered by defendant for not settling the loss was that policy No. 274,373, according to records of the general manager's office, was issued to another person, W. W. McEachen, and expired February 21, 1896, which complication defendant wished time to solve by correspondence with other companies, represented at the time by their agents Montgomery & White, to ascertain if any of them had issued a policy to p...

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