Rawls v. American Central Ins. Co.

• Decision Date: 21 April 1914
• Docket Number: 8805.
• Citation: 81 S.E. 505,97 S.C. 189
• Parties: RAWLS v. AMERICAN CENTRAL INS. CO.
• Court: South Carolina Supreme Court

81 S.E. 505

97 S.C. 189

RAWLS v. AMERICAN CENTRAL INS. CO.

No. 8805.

Supreme Court of South Carolina

April 21, 1914

Appeal from Common Pleas Circuit Court of Aiken County; Geo. W Gage, Judge.

Action by W. L. Rawls against the American Central Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed conditionally.

See also, 94 S.C. 299, 77 S.E. 1013, 45 L. R. A. (N. S.) 463.

Fraser J., dissenting.

Defendant's exceptions are:

"Exceptions.

"1. The court erred in allowing testimony as to what passed between the agent and Mr. Rawls at the issuance of the policy, on the ground that the policy, in law, expressed the terms of the contract between the parties, and such testimony tended to vary its terms.

2. The court erred in allowing Mr. Rawls and H. M. Sawyer to testify as to assigning or not his claim against the insurance company, over the objection of defendant's counsel, on the ground that the assignment is in writing, and expresses the contract between the parties, and in permitting said witnesses to testify that a claim against the insurance company was reserved, and as to any understanding between said witnesses and H. M. Sawyer, as to reserving such claim against the company, the contract between the parties was varied.

3. The court erred in allowing Mr. Rawls to testify in regard to whom and how the premium was paid, on the ground that the policy expresses the terms of the contract, and such testimony tended to vary the same.

4. The court erred in permitting Mr. Rawls and H. M. Sawyer to testify that they had a private understanding and arrangement with each other whereby the mortgages could be returned to Mr. Rawls in the event the insurance company paid up the loss, in order to subrogate the company to his rights.

5. The court erred in not granting defendant's motion for a nonsuit at the conclusion of plaintiff's testimony, on the ground that the testimony showed that plaintiff owned no interest whatever in the property, mortgages, or insurance policy at the time the action was commenced.

6. The court erred in permitting the question and answer to and by Mr. Dan H. Sawyer, as to what the Dicks mortgage covered, on the ground that the mortgage speaks for itself and the court should have so held and charged.

7. The court erred in not granting defendant's motion for a nonsuit at the conclusion of all the testimony in the case, for the reason that the testimony shows, so that no other inference could be drawn therefrom, that the plaintiff owned no interest in the mortgages or in the policy of insurance, and had no claim against the company at the time the action was commenced; further, that a mortgage existed over the property (the Dicks mortgage) which was unknown and not consented to by the company, and which, according to the clear provisions of the policy, produced a forfeiture.

8. The court erred in charging plaintiff's second request, and in not holding that, under the testimony and the law of the case, the assignments covered all of plaintiff's interests, and that it was not a question for a jury, or a question of fact, as to whether plaintiff retained an interest, insurable or otherwise.

9. The court erred in charging plaintiff's third request.

10. The court erred in charging plaintiff's fifth request, because the claim was not adjudicated or liquidated, but was denied, and cannot bear interest until properly adjudicated; and in modifying defendant's seventh request by adding the words, 'and interest accrued from time of loss.'

11. The court erred in charging plaintiff's fifth request, because the court should have construed the said 'Dicks' mortgage to be one covering the personal property insured, as it, in fact, did and was intended to do, and should not have left it to the jury to say what sort of a mortgage it was, or whether it covered personal property or not.

12. The court erred in charging the plaintiff's eighth and ninth requests, and in not holding that in this case the question was not one to be submitted to the jury; the facts being susceptible of only one inference, and that being against the contention of the plaintiff, and in favor of the contention of the defendant.

13. The court erred in modifying defendant's eighth request, and seventh request, and sixth request; in refusing to charge the defendant's ninth, tenth, eleventh, and twelfth requests, as follow:

Ninth request: 'I charge you that the assignment of a mortgage in general terms transfers all of the assignor's rights thereunder. 1 Jones on Mortgages, 829; Burrell on Assignments, 354.'

Tenth request: 'You are charged that the mortgage by J. J. Jeffcoat to A. F. Dicks, dated December 4, 1909, and containing in its description the following: "With all improvements thereon"--means all of the improvements thereon existing at the time the mortgage was given, which includes the sawmill, planer, lathe, buildings, and any other property there; and, if you find that this mortgage existed on said property at the time of the issuance of the policy, and that Mr. Dan Sawyer, the agent, had no knowledge of the said Dicks mortgage, the existence of said mortgage amounted to a forfeiture of the policy, and the plaintiff cannot recover.'

Eleventh request: 'You are charged that, if the said Dicks mortgage was concealed from the agent, this amounts to a concealment of a material fact under the policy, and the plaintiff cannot recover.'

Twelfth request: 'That any alleged agreement, by parol, existing between H. M. Sawyer and W. L. Rawls to sell back to Rawls the mortgages in question cannot be valid and binding, unless the agreement is to be carried out within a year, and unless the agreement is in writing, or some memorandum made thereof.'

14. The court erred in not granting defendant's motion for a new trial based upon the following grounds, which were presented to the court in presenting said motion:

(1) The court erred in admitting testimony as to alleged conversation at the time of the issuance of the policy between Rawls, Jeffcoat, and the agent of the company, in that said testimony tended to contradict and vary the terms of the written contract which was made at that time, and which was in evidence, which ruling was prejudicial to this defendant.

(2) The court erred in admitting evidence as to premium being paid indirectly by Rawls, in that said testimony varied the terms of the contract which was in evidence to this defendant's prejudice.

(3) The court erred in permitting plaintiff to introduce testimony tending to show a parol agreement between Rawls and H. M. Sawyer to the effect that he could regain the mortgages at any time by paying said Sawyer the $100 consideration given for the written assignment of the mortgages, the said testimony varying and contradicting the terms of the assignment, and also on the ground that said alleged parol agreement was an unlawful agreement according to law, could not be enforced, and was prejudicial to this defendant in this cause.

(4) The court erred in holding that, after plaintiff had assigned his mortgages to H. M. Sawyer, he still had an interest in the insurance contract which amounted to a chose in action, and which was sufficient to support this cause against the defendant; the ruling being prejudicial to this defendant.

(5) The Court erred in overruling the various other objections interposed by defendant to admission of testimony, as shown by the exceptions in the record noted by defendant's counsel.

(6) The court erred in not granting the motion of defendant for a nonsuit on the grounds noted in the record.

(7) The court erred in refusing the several requests of the defendant to charge the jury; the same containing sound legal propositions and applicable to the case--this defendant being prejudiced thereby.

(8) The court erred, especially, in refusing to construe the 'Dicks' mortgage as contended for by defendant, and in leaving it to the jury to say whether the mortgage pertained to realty or to personalty.

(9) The court erred in instructing the jury that it might give a verdict amounting to more than $1,000 stated in the policy of insurance, being interest in amount to over $100 additional.

(10) The court erred in not granting defendant's motion for a nonsuit, or in not directing a verdict, at the conclusion of the whole testimony, as requested by defendant.

(11) In the event the court determines not to grant a new trial on the grounds above set forth, the defendant asks that the court direct a reduction from the amount of the verdict of the amount above $1,000; also, the sum of $100 being premium returned by the company when the policy was canceled, and the sum of $100 obtained by Rawls from H. M. Sawyer, the consideration for the assignment of the said mortgages."

"15. The court erred in not setting aside the verdict of the jury in the case, on the ground that the testimony showed that the said verdict was against the greater weight of the testimony, and prejudicial to the defendant's interests in this cause ."

Statement of Facts.

This is an action on a policy of fire insurance. On a former appeal herein, the sole question determined was that the plaintiff, as mortgagee, was entitled to notice of cancellation. 94 S.C. 299, 77 S.E. 1013, 45 L. R. A. (N. S.) 463.

The complaint alleges:

"That on the 1st day of July, 1911, upon the application of J. J. Jeffcoat and W. L. Rawl, the defendant company issued to J. J. Jeffcoat and W. L. Rawl its policy of insurance by which it insured in the sum of $1,000 against loss by fire the following property of the said J. J Jeffcoat, to wit: $300 on his frame building; $150 on his sawmill; $300 on his planer; and $250 on his turning lathe.

That each of the above-stated items of property was incumbered by mortgages in

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