Pearlstine v. Westchester Fire Ins. Co.

• Decision Date: 05 November 1904
• Parties: PEARLSTINE v. WESTCHESTER FIRE INS. CO.
• Court: South Carolina Supreme Court

49 S.E. 4

70 S.C. 75

PEARLSTINE v. WESTCHESTER FIRE INS. CO.

Supreme Court of South Carolina

November 5, 1904

Appeal from Common Pleas Circuit Court of Bamberg County; Purdy Judge.

Action by T. W. Pearlstine against the Westchester Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed.

Jno. C Reed and Jno. R. Bellinger, for appellant. Izlar Bros. and H F. Rice, for respondent.

WOODS J.

In this action on a fire insurance policy covering a stock of goods the defendant sets up the failure of the plaintiff to comply with three stipulations of the policy: (1) "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void *** if the interest of the insured be other than unconditional and sole ownership." (2) The provision that the proof of loss shall be rendered within 60 days, "signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property," etc. (3) "The insured, as often as required, shall exhibit to any person designated by this company all that remains of any property herein described, and submit to examination under oath by any person named by this company, and subscribe the same."

At the close of plaintiff's testimony, defendant asked for a nonsuit on the ground that the foregoing conditions to recovery had not been complied with. If we assume that the evidence established noncompliance, a nonsuit would have been improper, because, as has been frequently held, the plaintiff might show waiver by the defendant. Sample v. Insurance Co., 42 S.C. 14, 19 S.E. 1020; Copeland v. Assurance Co., 43 S.C. 26, 20 S.E. 754; Carpenter v. Accident Co., 46 S.C. 546, 24 S.E. 500. The exceptions as to refusal or nonsuit cannot, therefore, be sustained. In such cases the motion for nonsuit or to direct a verdict should be made at the close of all the testimony.

The verdict being for the plaintiff for the amount of the policy, the defendant made a motion for a new trial, which was refused. If it appeared from the record that the motion was made on the ground that there was no testimony on which the verdict could stand, this court would be in a position to consider whether there was any real question of fact made by the evidence as to the violation of the policy on the part of the plaintiff, and any evidence of waiver, but the record is silent as to the grounds upon which the new trial was asked. The court can consider nothing outside of the record. We cannot infer from the exceptions or the general course of the trial that the motion for a new trial was made on the ground of a total lack of proof to support the claim. Without expressing any opinion whatever as to the evidence, therefore, the exceptions alleging error in refusing to grant a new trial must be overruled.

The defendant's first four exceptions to the charge relate to the stipulation in the policy as to exclusive ownership. It is true, the circuit judge did say in opening his charge that the defendant admitted the fire destroyed the property of the plaintiff; but the statement was a manifest inadvertence, to which it would have been well for defendant's counsel to call the court's attention. Subsequently the question of exclusive ownership was submitted as requested by defendant, and this should be held to remove any erroneous impression made on the jury by the first remarks as to ownership.

The defendant's first and second requests were as follows: "(1) That if the jury finds that the policy in question was issued to T. W. Pearlstine, and at that time the property insured belonged to S.W. Pearlstine, and not to T. W. Pearlstine, and that fact was not known to the defendant or its agent, plaintiff cannot recover. (2) That if the jury find that at the time of the fire the property insured belonged to S.W. Pearlstine, and not to T. W. Pearlstine, and that fact was not known to defendant or its agent, plaintiff cannot recover." The circuit judge charged these requests; adding, in substance, that knowledge of facts which should suggest inquiry and lead to the discovery of the real ownership would be equivalent to actual knowledge. The defendant, without challenging the correctness of the addition made to the requests as an abstract proposition, insists it was erroneous and prejudicial, because there was no testimony upon which to base it. Assuming, without deciding, that S.W. Pearlstine, and not the plaintiff, T. W. Pearlstine, was the owner; that the defendant had no knowledge of that fact, and that there was nothing to put him upon inquiry; and assuming, further, that it is reversible error to submit questions to the jury for which the testimony affords no basis--it does not follow that this exception can be sustained. The defendant itself requested the questions of ownership, and actual knowledge by the defendant of the true ownership, to be submitted to the jury as issues for them to decide, and therefore cannot complain that the court, in the same connection, instructed the jury, in considering the issue of actual knowledge, to consider also the issue of knowledge of facts which would put defendant on inquiry as to the true ownership. The requests of defendant could not have been charged at all, except with the modification made by the court. Gandy v. Insurance Co., 52 S.C. 224, 29 S.E. 655.

The defendant's third request was: "(3) That if the jury find that S.W. Pearlstine was in charge of the property, managing and controlling it under a power of attorney from T. W. Pearlstine, that fact was not sufficient to charge the agent of defendant with the knowledge or notice of any interest in S.W. Pearlstine in said property." It is obviously true that the single fact of the management of property under a power of attorney by the agent named in the paper does not charge those who deal with the reputed agent, acting in the name of the principal, with knowledge or notice that the agent, and not the principal, is the real owner; but it is not proper for the circuit judge to select isolated facts and state their effect. Whether the evidence would have justified a charge that T. W. Pearlstine was not the sole and unconditional owner of the property, and that there was nothing to show knowledge or information sufficient to put the defendant on inquiry, and that, under the terms of the policy, defendant was not liable unless there was a waiver of the stipulation as to ownership, we repeat, to avoid misunderstanding, is quite a different question, and one not before the court. Hence we decide nothing on the question of ownership and insurable interest.

The fourth request was manifestly covered by the charge made under the first and second requests.

The proof of loss was made out and sworn to by S.W. Pearlstine the agent, who conducted the mercantile business under a power of attorney...