Appeal
from common pleas circuit court of Florence county; R. C
Watts, Judge.
GARY
A. J.
This is
an action on a policy of fire insurance, in which the second
paragraph of the complaint is as follows: "That on the
19th day of February, A. D. 1892, in consideration of the
payment by the plaintiff to the defendant of sixteen dollars
and fifty cents, the defendants, by their agents, duly
authorized thereto, made their policy of insurance in
writing, and thereby insured the plaintiff against loss by
fire for the term of one year, to the amount of one thousand
dollars, upon all her household furniture," etc. The
principal defense relied upon by the defendant, and which
involves the questions
raised by the exceptions, is as follows: "That said
policy of insurance contained a provision whereby the
plaintiff covenanted and agreed, and it was stipulated by and
between the parties thereto, that, in case the assured shall
thereafter, from the date of said policy, make any other
insurance on the property thereby insured, without the
consent of the company written thereon, then said policy
should be void; and the defendant alleges that during the
lifetime of said policy, to wit, on the ___ day of ___, 1892,
the plaintiff insured the property covered by the policy
aforesaid, for the sum of one thousand dollars, in the
Greenwich Insurance Company, without the knowledge or consent
of the defendant written on said policy, or its agent's,
and by reason thereof the said policy of insurance issued by
this defendant to the plaintiff became null and void, and
said plaintiff cannot now maintain an action thereon."
The policy of insurance contained the following provisions:
"No other concurrent insurance permitted. *** That this
company shall not be liable until the actual payment of the
premium. *** If the assured shall have or shall hereafter
make any other insurance without the consent of the company
written hereon, *** then, and in every such case, this policy
shall be void. *** Nor shall the assured be entitled to
recover of this company any greater proportion of the loss or
damage than the amount hereby insured bears to the whole sum
insured on said property, whether such other insurance be by
specific or by general or floating policies. *** And it is
expressly covenanted by the parties hereto that no officer,
agent, or representative of this company shall be held to
have waived any of the terms and conditions of this policy,
unless such waiver shall be indorsed hereon in writing. ***
This policy is made and accepted on the above express
conditions." After the plaintiff closed her testimony,
the defendant made a motion for a nonsuit.
The
following appears in the "case": "The
plaintiff's counsel here announced that they rested, but
immediately after such announcement they said to the court
that they desired to recall Mr. Meares, to prove that at the
time Mr. Allen says he paid the amount of the premium to
Chase & Sons, who were the local agents of the defendants,
such agents had been informed that Commander had issued the
Greenwich policy to the plaintiff. The Court: 'I have
already ruled that under the case presented before the court,
that such testimony is incompetent, and that, so far as the
testimony goes, the only way to show waiver would be by
compliance with the terms of the policy, there being no other
grounds disclosed by the evidence, or suggested by counsel,
other than the simple offer to show knowledge of the local
agents of the taking out of another policy upon the same
property. I cannot see, if the agent chose to take the risk
himself of accounting for the premium to the company, and to
indulge the person taking out the policy upon his individual
account, how that binds the company in any way. If he
delivers the policy without taking the money, he does so at
his own risk, and it is the agent's own indulgence, and
not that of the company. I am therefore compelled to rule
that the proposed testimony of Mr. Meares, objected to, is
incompetent.' Plaintiff's counsel then announced that
they rested their case. The defendant's counsel thereupon
asked plaintiff's counsel if they had any further
evidence to offer upon the question of waiver; that, if they
did not, the defendant would offer no testimony.
Plaintiff's counsel not replying, the defendant's
counsel stated that, the proof being undisputed, and it
appearing by the plaintiff's own evidence that the
conditions of the policy had been broken, and that, under the
terms, no action could be sustained, therefore submitted that
a nonsuit should be granted, or that the jury be directed to
find a verdict for the defendant. The Court: 'What have
you to say on that point, Mr. Thompson?' Plaintiff's
Counsel: 'We refer your honor to the case of Copeland
v. Insurance Co. (S. C.) 20 S.E. 754, in which the facts
were similar, except in that case the iron-safe clause was
involved. A motion of nonsuit was granted by Judge Townsend.
The nonsuit was reversed by the supreme court on the ground
that the plaintiff should have been given an opportunity to
reply. We wish to put the plaintiff on the stand if the
defendant has closed.' Mr. Abney: 'You can do so
now.' The plaintiff declined. Thereupon Mr. Abney stated
that he had no evidence to offer, and asked that a nonsuit be
granted. The Court: 'It strikes me that there is no
testimony here which would warrant the jury in finding for
the plaintiff, and I will therefore grant your motion for a
nonsuit."' The plaintiff appealed upon exceptions
which will be set out in the report of the case.
The
exceptions will not be considered seriatim, as they raise
practically the single question whether there was any
testimony offered or...
