Riggs v. Home Mut. Fire Protection Ass'n

• Decision Date: 22 August 1901
• Citation: 39 S.E. 614,61 S.C. 448
• Parties: RIGGS v. HOME MUT. FIRE PROTECTION ASS'N OF SOUTH CAROLINA.
• Court: South Carolina Supreme Court

39 S.E. 614

61 S.C. 448

RIGGS v. HOME MUT. FIRE PROTECTION ASS'N OF SOUTH CAROLINA.

Supreme Court of South Carolina

August 22, 1901

Appeal from common pleas circuit court of Dorchester county; Watts Judge.

Action by O. R. Riggs against the Home Mutual Fire Protection Association of South Carolina. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

The following is a copy of the complaint: "The plaintiff above named, complaining of the defendant above named alleges: (1) That the defendant at the times hereinafter mentioned was, and now is, a corporation duly created under and by virtue of the laws of the state of South Carolina, and as such can sue and be sued, plead and be impleaded, in the courts of this state and the United States. (2) That by virtue of the authority granted it through its charter and the bylaws formed for the governance of its business, the defendant is empowered to insure against damage or loss by fire the buildings and contents of the buildings of its members. (3) That on the ___ day of ___, A. D. 1896 plaintiff applied for and was admitted into the membership of and obtained insurance against loss by fire upon his stock of general merchandise in his storehouse in Ridgeville, state and county aforesaid, to the amount of $1,500, in said defendant's corporation, in consideration of payment by plaintiff of the regular membership fee and premium charged upon said amount of insurance; and on the ___ day of ___, A. D. 1897, the plaintiff obtained additional insurance upon said stock to the amount of $500 in said defendant corporation in consideration of payment by plaintiff of the premium charged upon said amount of insurance; and the defendant, by its agent, duly authorized thereto, made its policies of insurance, in writing, for said amounts, and thereby insured the plaintiff against loss or damage by fire to the amount of $2,000 of his said stock of general merchandise. (4) That at the time of making said insurance, and from then until the fire hereinafter mentioned, the plaintiff had an interest in the property insured, as owner thereof, to an amount greatly exceeding the amount of said insurance. (5) That on the 27th day of November, 1897, said storehouse and said stock of general merchandise were totally destroyed by fire, which did not happen from any of the causes excepted in said policies of insurance. (6) That the plaintiff duly fulfilled his obligations as a member of said association and all the conditions of said insurance policies, and in accordance with their requirements gave to the defendant due notice and proof of the fire and loss aforesaid, and duly demanded payment of the said sum of $2,000. (7) That at the times hereinbefore and hereinafter mentioned, Thos. F. Harmon was the general agent of said defendant. (8) That on or about the 15th day of January, 1898, the said Thos. F. Harmon, general agent of the defendant, offered to pay to this plaintiff, in satisfaction of the amount due on said policies of insurance, the sum of $1,000, wantonly, maliciously, and with intent to defraud, falsely representing to this plaintiff that the said defendant was insolvent, stating that the said defendant would be forced to go into the hands of a receiver should the plaintiff persist in demanding the payment of the full amount due him by said defendant, and that, should a receiver be appointed for the said defendant, the plaintiff would not realize ten cents on the dollar for his claim. (9) That the plaintiff, on account of the said false representations and statements, and for no other reason, agreed to receive in settlement of the said sum of $2,000, due him by said defendant, the sum of $1,000, and did, in accordance with such agreement, receive from said defendant the sum of $1,000 in satisfaction of the full amount due him, and delivered up the said policies of insurance to the said Thos. F. Harmon to be canceled. (10) That plaintiff is informed and believes, and so avers, on information and belief, that the defendant was at the time of the aforesaid settlement, and is now, solvent. Wherefore plaintiff demands judgment against said defendant: First, for the sum of $1,000, with interest at the rate of seven per cent. per annum from the 15th day of January, 1898; second, for the costs and disbursements of this action; third, for such other and further relief as may be just."

The defendant filed the following demurrer: "The defendant demurs to the complaint herein on the ground that it appears upon the face of the complaint that the complaint does not state facts sufficient to constitute a cause of action against this defendant." The demurrer was sustained on circuit by the following order: "This case comes on for hearing on the demurrer of the defendant that the complaint does not state facts sufficient to constitute a cause of action against the defendant. The defendant bases the demurrer on the following grounds: (1) That it appears on the face of the complaint that the plaintiff's claim against the defendant had been paid and discharged before the commencement of this action. (2) That it does not appear from the complaint that the plaintiff had rescinded the contract under which he received payment and satisfaction of his claim against the defendant, and had returned or offered to return to the defendant the $1,000 received by him from the defendant in payment and satisfaction of his said claim before the commencement of this action. (3) That the plaintiff cannot maintain this action, because it does not appear that he had returned or tendered to the defendant the sum of $1,000, paid to the plaintiff by the defendant, and accepted by the plaintiff in satisfaction and discharge of his claim, before the commencement of this action. After hearing argument by counsel for plaintiff and defendant, I have concluded that the demurrer should be sustained on the three grounds set out above. It is therefore ordered that the demurrer of the defendant be sustained, and that the complaint be dismissed."

Plaintiff appealed on following exceptions: "You will please take notice that, in pursuance of our 'notice of intention to appeal,' herein heretofore served upon you, we herewith submit the following 'exceptions' to the order of Hon. R. C. Watts, made on May 23, 1900, and will move the supreme court at its next sitting to reverse and set aside such order upon the grounds set out in such 'exceptions': (1) Because it is respectfully submitted that the presiding judge erred in not holding and deciding that the demurrer interposed by the defendant was too general and indefinite, it failing to set out wherein such complaint did not state facts sufficient to constitute a cause of action. (2) Because the presiding judge erred in not holding and deciding that the complaint herein was upon the original contract of insurance, and as such set out facts sufficient to constitute a cause of action. (3) Because the presiding judge erred in not holding and deciding that, as the complaint set out the original contract, the receipt of a less sum than that contracted for thereby, and a release obtained by fraud, it did set out facts sufficient to constitute a cause of action. (4) Because the presiding judge erred in not holding and deciding that the release set out in the complaint was not a new and original contract between plaintiff and defendant, and that no rescission thereof is necessary if the same be a nullity, and therefore need not be alleged. (5) Because the presiding judge erred in not holding and deciding that it is not necessary that a creditor who claims under an admitted contract for a greater liquidated sum, and who takes in composition a lesser sum, should pay back the sum received before bringing suit, and that it was therefore not necessary to allege the same. (6) Because the presiding judge erred in holding and deciding that it appeared on the face of the complaint that the plaintiff's claim had been paid and discharged before the commencement of this action, and in sustaining on such ground the demurrer herein."

Bellinger & Behre, for appellant.

Mower & Bynum, for respondent.

McIVER C.J.

This is an appeal from an order sustaining a demurrer to the complaint, based upon the ground that it does not state facts sufficient...