Powell v. Home Insurance Company

• Decision Date: 07 May 1958
• Docket Number: Civ. A. No. 6429.
• Citation: 164 F. Supp. 654
• Court: U.S. District Court — District of South Carolina
• Parties: Mrs. Lorraine POWELL, Plaintiff, v. The HOME INSURANCE COMPANY, Defendant.

164 F. Supp. 654

Mrs. Lorraine POWELL, Plaintiff, v. The HOME INSURANCE COMPANY, Defendant.

Civ. A. No. 6429.

United States District Court E. D. South Carolina, Aiken Division.

May 7, 1958.

Solomon Blatt, Jr., Blatt & Fales, Barnwell, S. C., for plaintiff.

Julian B. Salley, Jr., Henderson, Salley & Cushman, Aiken, S. C., for defendant.

TIMMERMAN, Chief Judge.

This is a fire insurance case. Upon its trial the jury returned a verdict for the plaintiff of $2,500 for the loss of her dwelling and $7,000 for the loss of the contents of the dwelling. The policy is a renewal of a pre-existing policy, which afforded $3,000 protection on plaintiff's dwelling and $7,000 on the contents of the dwelling. A fire destroyed the dwelling and its contents while the plaintiff and her husband were in Florida.

The defendant's motion, as originally made, is based upon eight grounds, but the fourth ground has been withdrawn.

The primary contention of the defendant is that, since the policy of insurance contained a $10,000 valuation clause for fire insurance purposes and since plaintiff carried a total of $12,000 of insurance on the dwelling, the policy is void and plaintiff has forfeited the insurance on the dwelling. It is admitted for the purposes of this case that the plaintiff did carry $12,000 of fire insurance on the dwelling.

The defendant made the stated issue by taking exception to the Court's refusal to charge its requests, which, if charged, would have adjudged the forfeiture of the policy covering the dwelling. The fire occurred on April 16, 1957, and at that time the following Section of the 1952 South Carolina Code was in effect, to-wit:

"No company writing fire insurance policies, doing business in this State, shall issue a policy for more than the value stated in the policy or the value of the property to be insured, the amount of insurance to be fixed by the insurer and insured at or before the time of issuing the policy. In case of total loss by fire the insured shall be entitled to recover the full amount of insurance and in case of a partial loss the insured shall be entitled to recover the actual amount of the loss, but in no event more than the amount of the insurance stated in the contract. But if two or more policies are written upon the same property they shall be deemed and held to be contributive insurance and if the aggregate sum of all such insurance exceeds the insurable value of the property, as agreed by the insurer and the insured, each company shall, in the event of a total or partial loss be liable for its pro rata share of insurance. Nothing in this section shall be held to apply to insurance on chattels or personal property." Sec. 37-154.

The defendant has made no attack upon this section of the S.C.Code. It is not contended that it is unconstitutional or that its passage was beyond the power of the General Assembly of South Carolina to enact. Under the law of South Carolina, applicable statutes, such as Section 37-154, must be read into policies of insurance and considered as parts thereof. Hence, the provisions of said section must be read into the policy of insurance here in question. Camden Wholesale Grocery v. National Fire Ins. Co., 106 S.C. 467, 91 S.E. 732; Cole v. Jefferson Standard Life Ins. Co., 113 S.C. 22, 100 S.E. 893; New York Life Ins. Co. v. Greer, 170 S.C. 151, 169 S.E. 837; Dobson v. American Indemnity Co., 227 S.C. 307, 87 S.E.2d 869.

This section plainly says that no insurance company shall issue a policy of fire insurance for more than the value stated in the policy or the value of the property as fixed by the insurer and the insured. It also plainly and unambiguously says that in case of total loss by fire the insured "shall be entitled to recover the full amount of insurance", and that in case of partial loss the insured "shall be entitled to recover the actual amount of the loss", provided the loss does not exceed the amount of insurance stated in the policy. Equally plain and unambiguous is the provision which says that in case two or more policies are written upon the same property, as admittedly is the case here, "they shall be deemed and held to be contributive insurance and if the aggregate sum of all such insurance exceeds the insurable value of the property, as agreed by the insurer and the insured, each company shall, in the event of a total or partial loss, be liable for its pro rata share of insurance". Nothing could be plainer or more explicit, so if this Court has no power to re-write the law of South Carolina it is bound to give effect to the cited section of the South Carolina Code.

It is true, as urged by counsel for the...