Sample v. London & L. Fire Ins. Co. Of Liverpool

• Decision Date: 26 July 1894
• Citation: 19 S.E. 1020,42 S.C. 14
• Court: South Carolina Supreme Court
• Parties: SAMPLE v. LONDON & L. FIRE INS. CO. OF LIVERPOOL.

19 S.E. 1020

42 S.C. 14

SAMPLE

v.LONDON & L. FIRE INS. CO. OF LIVERPOOL.

Supreme Court of South Carolina.

July 26, 1894.

Action on Insurance Policy.

In an action on a fire-insurance policy, the answer denied plaintiff's right to recover, because the policy provided that no action could be maintained unless brought within one year from the date of fire. On the trial, it was admitted by plaintiff that the action was not commenced within such year. The judge, without further proceedings, directed a verdict for defendant. Held error, as plaintiff should have been allowed to show that defendant had waived the stipulations of the policy, or was estopped from urging the same.

Appeal from common pleas circuit court of Edgefield county; J. H. Hudson, Judge.

Action by E. B. Sample against the London & Lancashire Fire Insurance Company of Liverpool to recover a loss under a policy.

Judgment was rendered for defendant and plaintiff appeals. Reversed.

J. William Thurmond, for appellant

Shep-pard Bros., for respondent

POPE, J. The plaintiff having entered Into a contract with the defendant, in April, 1891, whereby, for a valuable consideration, the defendant issued a policy of insurance wherein the defendant agreed to pay to the plaintiff $250, in case a certain wooden building, therein specified, should be destroyed by fire within the 12 months next ensuing after the date of the contract, and the building in question having been destroyed by fire In May, 1891, on the 5th July, 1892, this action was commenced in the court of common pleas for Edgefield county, in this state, to recover the loss. In her complaint is stated the date of the contract, the loss by fire, and the refusal of the defendant to pay the loss. The answer of defendant admitted the contract, but denied plaintiff's right to recover, upon several grounds, among which was that there was a stipulation in the policy tLat, in case of loss by fire during the period of insurance, no liability should attach to insurance company, under its policy so issued, unless action was brought within 12 months after date of fire. At the trial, before Judge Hudson and a jury, It having been admitted by plaintiff that it was stipulated in the policy that no liability would attach unless action was brought within 12 months after the date of the fire, and that the fire occurred in May, 1891, and the action was commenced on the 5th July, 1892, Judge Hudson, without any further proceedings, and against the protest of plaintiff,...