Ournow v. Phoenix Ins. Co. Of Hartford

• Decision Date: 11 March 1896
• Citation: 46 S.C. 79,24 S.E. 74
• Court: South Carolina Supreme Court
• Parties: OURNOW. v. PHOENIX INS. CO. OF HARTFORD, CONN.

24 S.E. 74

46 S.C. 79

OURNOW.

v.PHOENIX INS. CO. OF HARTFORD, CONN.

Supreme Court of South Carolina.

March 11, 1896.

Jury—Impaneling—Challenges—Discretion op Court — Insurance — "Iron-Safe Clause" — Waiver—Declarations of Agent—Pleading —Negative Pregnant.

1. Under Rev. St. § 2404, allowing each party two peremptory challenges to jurors in civil cases, and providing that the right "shall extend to jurors drawn to fill the places of those challenged, " where plaintiff challenged the foreman of the jury, and another was appointed as foreman without 'objection from defendant, and both parties stated that they were satisfied with the jury, the court, in allowing plaintiff to challenge such substituted foreman, was acting within his discretion.

2. In an action on a fire policy, where there was some evidence that defendant had waived strict compliance with an "iron-safe clause, " it was proper to refuse an instruction ignoring the question of waiver.

3. That an insurance agent, after the fire, received insured's account books, with knowledge that they were not in the safe at the time of the fire, and stated that it was "all right, " is evidence of a waiver by the company of an "iron-safe clause."

4. Where the complaint in an action on a policy alleged that insured "duly fulfilled all the conditions, * * * and, more than sixty days before the commencement of the action, gave the defendant due notice and proof of the fire and loss, " a denial in the answer following the exact words of the allegation was bad aS a negative pregnant.

Appeal from common pleas circuit court of Barnwell county; Ernest Gary, Judge.

Action by Sarah Curnow against the Phoenix Insurance Company of Hartford, Conn. Judgment for plaintiff, and defendant appeals. Affirmed.

Defendant's exceptions were as follows: "(1) The presiding judge erred in allowing the plaintiff, against objection of defendant, to challenge peremptorily the foreman of the jury appointed by the court after the plaintiff and defendant had both stated they had no further exception to the jury, and after the jury had been fully impaneled, and the trial of the case proceeding. (2) The presiding judge erred in admitting, against the objection of defendant, the testimony of J. B. Reeves, witness for plaintiff, in following question and answer:.'Q. Is it usual to sign attachments to the policy except at the end of all the provisions thereof? A. No, '—the same being immaterial, incompetent, and irrelevant, to prejudice of defendant. (3) The presiding judge erred in refusing a motion for nonsuit at the close of the plaintiff's case, which motion is renewed on appeal. (4) The presiding judge erred in not instruct ing the jury as prayed by defendant: 'The jury are instructed that the proof of loss required by the policy must contain a particular account of the loss, and. If the proofs of loss fail to give a particular account of the loss, the proofs of loss are not satisfactory proofs of loss required by the policy, and the plaintiff cannot recover.' (5) The presiding judge erred in not instructing the jury as prayed by defendant: 'The jury are instructed that the policy required the assured to keep a set of books showing the record of her business, including all purchases and sales, both for cash and on credit, as well as a copy of their last inventory, all to be kept in an iron safe every night; otherwise, the policy shall be null and void. And if the jury find from the evidence that the agent and manager of the assured, under oath and examination under policy, deposed that the cashbook containing the cash sales for the remainder of August, 1889, —that is, August 2, 1889, to October 18, 1889, inclusive—was in a wooden cabinet and was burned in the assured's store on the night of the 18th of October, 1889, then such fact, if true, is a valid defense to the defendant company, and plaintiff cannot recover.' (6) The presiding judge erred in not instructing the jury as prayed by defendant: 'The jury are instructed that, under this contract of insurance, it was the duty of the assured, within sixty days before bringing suit, to have rendered to the company a particular account, and satisfactory proofs of loss; and if the jury find from the evidence that the proofs of loss sent the company by the assured are founded on estimated cash sales, not taken from the books of the assured contracted to be kept by the terms of the policy, then the jury are instructed that such proofs of loss do not satisfy the conditions of the policy; and if the insurance company, upon their receipt, pointed out the defect to the assured, and thereafter no other and satisfactory proofs of loss were furnished by the assured to the company within sixty days before bringing this action, then the plaintiff cannot recover.' (7) The presiding judge erred in charging the jury as follows: 'Now, the question of fact comes up for you: Has the insurance company done any act by which it has waived its right to demand a strict construction of its contract? That is a question for you, whether or not there has been any waiver on the part of the insurance company to forfeit its right to a strict compliance on the part of the assured. That is the question of fact for you.' (8) The presiding judge erred in not charging the jury as prayed by defendant, as follows: 'The jury are instructed that, under the contract of insurance, it was the duty of the assured, within sixty days before bringing suit, to have rendered to the company a particular account and satisfactory proofs of loss; and if the jury find from the evidence that the proofs of lossgent the company by the assured are founded on estimated cash sales, not taken from the books of the assured contracted to be kept by terms of the policy, then the jury are instructed that such proofs of loss do not satisfy the conditions of the policy; and if the insurance company, upon their receipt, pointed out the defect to the assured, and thereafter no other and satisfactory proofs of loss were furnished by the assured to the company before or at the time of the assignment of the policy by A. J. Levy to the plaintiff, Sarah V. Curnow, or thereafter, and within sixty days before Sarah V. Curnow, plaintiff, brought this suit, then nothing was due upon this policy at the time of its assignment to Sarah V. Curnow, and nothing passed to her by such assignment, and Sarah V. Curnow, plaintiff, cannot recover.' "

Bryan & Bryan and L. T. Izlar, for appellant.

J. N. Nathans and Robt. Aldrich, for respondent.

GARY, J. This is an action on a policy of insurance for $2,500, issued on the 22d day of February, 1889, by the defendant aforesaid, to Mrs. A. J. Levy, on a stock of merchandise contained in a store at Blackville, S. C. On the 18th day of October, the property covered by the policy was destroyed by fire. The complaint alleges: (1) The incorporation of the defendant; (2) the issuing of the policy by the defendant; (3) ownership of the insured, and loss; (4) that the said Mrs. A. J. Levy duly fulfilled all the conditions of said insurance on her part, and, more than GO days before the commencement of the action, gave the defendant due notice and proof of the fire and loss aforesaid, and duly demanded payment of said sum of $2,500; (5) assignment of the policy and moneys due Mrs. A. J. Levy, to the plaintiff, Mrs. Sarah V. Curnow; (6) nonpayment of said loss. The defendant, by its answer, denied that said A. J. Levy fulfilled all the conditions of said insurance on her part, and, more than GO days before the commencement of this action, gave to the defendant due notice and proof of fire and loss thereunder, as alleged in paragraph 5 of the complaint. It also alleged the following defenses: (1) That said policy of insurance was issued and accepted by the assured upon the express condition, covenant, and promissory warranty thereunder contained, to wit: "It is further understood and agreed that the assured shall keep a set of books, showing a record of his or their business, including all purchases and sales, either for cash or credit, as well as a copy of his or their last inventory, all to bo kept in an iron safe every night; otherwise, this policy shall be null and void." (2) And the defendant alleges that the assured did not keep a set of books showing a record of her business, including all her purchases and sales, both for cash and credit, as well as a copy of her last inventory, and did not keep all the books as aforesaid in an iron safe every night during the continuance of said policy. (3) And defendant alleges that on the night of the alleged fire, to wit, the 18th of October, 1889, the cashbook of the said assured, being one...