Pelzer Manuf'g Co v. Sun Fire Office Of London

• Decision Date: 21 April 1892
• Citation: 15 S.E. 562,36 S.C. 213
• Parties: Pelzer Manuf'g Co. v. Sun Fire Office of London. (No. 1.) Same v. German American Ins. Co. of New York. (No. 2.) Same v. Hibernia Ins. Co., (two cases, Nos. 3, 4.) Same v. Hamburg-Bremen Ins. Co., (two cases, Nos. 5, 6.) Same v. Southern Ins. Co. of New Orleans, (two cases, Nos. 7,8.) Same v. American Fire Ins. Co. of Philadelphia, (two cases, Nos.9,10.)
• Court: South Carolina Supreme Court

15 S.E. 562

36 S.C. 213

Pelzer Manuf'g Co.

v.Sun Fire Office of London. (No. 1.)

Same

v.German American Ins. Co. of New York. (No. 2.)

Same

v.Hibernia Ins. Co., (two cases, Nos. 3, 4.)

Same

v.Hamburg-Bremen Ins. Co., (two cases, Nos. 5, 6.)

Same

v.Southern Ins. Co. of New Orleans, (two cases, Nos. 7, 8.)

Same

v.American Fire Ins. Co. of Philadelphia, (two cases, Nos.9, 10.)

Supreme Court of South Carolina.

April 21, 1892.

Removal of Actions from State to Federal Courts — Consolidation — Jurisdiction of State Court —Insurance — Evidence—Conditions of Policy—Depositions—Proofs of Loss —Interest of Warehousemen—Subrogation— Omission of Material Facts in Application —Agency—Instructions—Refusals to Charge —Amount of Judgment.

1. Where a party moved to consolidate and remove two cases from a state to a federal court, and filed but one petition and bond for removal, the state court rightly assumed that he did not desire the removal of one without the other.

2. A petition for the consolidation of several causes will not be granted where the effect of such consolidation would be to oust the jurisdiction of the court in which the causes were brought.

3. A state court has no jurisdiction to grant a motion to consolidate several causes, where the necessary petition and bond were filed for the removal of one of the causes to a federal court, since on the filing of such petition and bond the rase is, in law, removed, so as to be docketed in the federal court. Marshall v. Holmes, 12 Sup. Ct. Rep. 62, 141 U. S. 595, followed.

4. A defendant cannot, on the ground of Ir relevancy, object to evidence of the truth of an allegation of the complaint which he has seen fit to deny.

5. In an action on certain policies of insurance, covering cotton destroyed by the burning of the warehouse in which it was stored, which policies provided that on the payment of any loss the insurer should be subrogated to any right of action which the insured might have against any person by whose act or omission such loss might be occasioned, it appeared that the warehouse stood on land within the limits of a railroad company's right of way; that this land was held by the warehousemen under a lease from the railroad company by which the lessor was exempted from liability for any loss occasioned by fire communicated from its locomotives. Defendants were permitted to introduce evidence that reputable insurance companies regarded the right of subrogation so material that some world refuse to take risks where that right was barred or released, or that others would take such risks only at a higher rate of premium. Held, that it was competent for plaintiff to show that reputable insurance companies, knowing that the right of subrogation was released, did take risks at a lower rate of premium on cotton stored in the new warehouse, erected where the old one stood.

6. The policies had been issued by the warehousemen, and by them assigned to plaintiff. The nature of their business was shown by the direct testimony of one of them and by their bookkeeper. Plaintiff was. then permitted to prove the same thing by general reputation, for the purpose of charging defendant with knowledge thereof. Held competent.

7. In the trial of two cases, entitled P. v. P. and P. v. Of., the court properly excluded certain depositions, where the sealed envelopes in which they were inclosed were indorsed: "P. v. S. 10 cases."

8. Where the question of the ownership of the land on which the warehouse stood was a mere collateral matter not directly in issue, oral testimony thereof was properly admitted.

9. Where the issue was whether "proofs of loss, " as required by the policies, were made out and delivered to defendant, and not what was contained in such proofs, parol evidence was admissible.

10. The warehousemen had an insurable interest in the cotton stored with them, they having contracted to indemnify the owners thereof for its loss, and the trial court properly construed the policies covering cotton stored in the insured's warehouse so as not only to cover cotton owned absolutely by them, but also that which was in their possession as warehousemen.

11. The warehousemen having released whatever right of action they would have had in case of fire against the railroad company before the policies of insurances sued on were issued, defendants cannot claim to be subrogated to such released right.

12. Where defendants issued the policies of insurance on verbal applications, and asked no questions except as to the amount of insurance wanted, the property to be insured, and its location, and the warehousemen made no misrepresentations, defendants cannot escape liability on the ground that the policies provided that failure to make known any facts material to the risk would render the policies void.

13. There was no error in refusing to charge that "the local agent [of defendants] cannot, without special authority, waive" the right of subrogation provided for in the policies, "nor is it waived by his knowledge of the contract relieving the railroad company."

14. The court properly refused to charge that the recording of the lease from the railroad company to the warehousemen did not constitute notice to defendants of the contents of the lease, and, unless they had actual notice of such contents when the policies were issued, they cannot be held to have known of its existence or of its contents.

15. Where the amount of the loss exceeded thaaggregate sum of all the policies, plaintiff is entitled to recover the total amount of the risks assumed by each defendant, with interest.

10. One of the policies covered the warehouse, and provided that, if the building stood on leased ground, it must be so represented to defendant, and expressed in writing in the policy; otherwise the insurance as to such property would be void. There was evidence that defendants' agent knew that the warehouse was on leased land. Held, that the court properly refused to charge that, if such fact was not stated in writing in the policy, plaintiff could recover.

Appeal from common pleas circuit court of Greenville county; Jamks Aldrich and William Wallace, Judges.

Separate actions by the Pelzer Manufacturing Company against the Sun Fire Office of London, England, the German-American Insurance Company of New York, the Hibernia Insurance Company, the Hamburg-Bremen Insurance Company, the Southern Insurance Company, and the American Fire Insurance Company of Philadelphia. Judgment in each action for plaintiff. Defendants appeal. Affirmed.

The following is the charge of the circuit judge in the case against the Sun Firo Office:

"This action involves two issues, —one equitable and the other legal; the former to be determined by the court, the latter to be passed upon by the jury, under the instructions of the court. 1 will state my conclusions upon the equitable issues:

"The evidence shows that Cely & Bro. agreed for a valuable consideration to receive certain cotton of the plaintiffs, to be keptand stored by them, as warehousemen, in their warehouse, described in the policy and in the pleadings; and also agreed with plaintiffs to indemnify and hold harmless the plaintiffs from any loss or damage to the said cotton by fire from any cause. I hold that Cely & Bro. had an insurable interest in the cotton of the plaintiffs received and held by them as warehousemen; also that their contract to indemnify and hold harmless the plaintiffs from any loss or damage to the said cotton by fire from any cause gave Cely & Bro. an insurable interest in said cotton. Cely & Bro, having an insurable interest in said cotton, did insure said cotton, the defendant accepting the insurance, and issued to Cely & Bro. a policy covering the cotton in question, which recites, inter alia, that the defendant, in consideration of $12 paid by Cely & Bro., did insure Cely & Bro. to the amount of $2,000 'on cotton in bales stored in their warehouse, West Greenville, ' against destruction or damage by fire or by lightning from January 16, 1889, to March 17, 1889. Defendants contend that the terms of the policy restrict the loss to cotton belonging absolutely to Cely & Bro.; and did not, and does not, cover cotton held by Cely & Bro. as warehousemen, or cotton of the plaintiff held by Cely & Bro. under the contract proved between Cely & Bro. and the plaintiffs. I hold, and so decree, that the terms of the policy do cover the cotton of plaintiff held by Cely & Bro. under the aforestated contract in their warehouse, and destroyed by fire dnring the currency of the insurance policy; and that Cely & Bro. could maintain this action. Cely & Bro. having assigned the policy to plaintiff, I hold that the plaintiff has the right to maintain and prosecute this action to the same extent that Cely & Bro. could have done. The conclusion of the court on these issues renders unnecessary any consideration of the question of reformation of the policy, consequently the court will not consider the question of reformation.

"A good deal has been said about corporations, insurance companies, etc. Both parties to this action are corporations; just as an individual, has the right to come into this court and ask its judgment upon any matter the subject of litigation. They are bound by the laws of the state, and are protected by the laws of the state, just as fully and carefully as any two citizens of your county would be entitled to. You have heard the complaint and the answer read. The complaint contains the allegations of the plaintiff, and upon those allegations he demands a judgment for $2,000 and interest against the defendant. The defendants put in their answer, and state the facts which they rely upon as showing do not owe the plaintiffs anything. These are the issues which you must determine, by your verdict, upon the evidence submitted in open court, in your presence, and the law as given to you by the court.

"I charge you that the policy contains the terms of the contract. It is the...