Spann v. Phcenix Ins. Co. Of Hartford

• Decision Date: 21 July 1909
• Citation: 83 S.C. 262,65 S.E. 232
• Parties: SPANN. v. PHCENIX INS. CO. OF HARTFORD, CONN.
• Court: South Carolina Supreme Court

65 S.E. 232

(83 S.C. 262)

SPANN.

v.PHCENIX INS. CO. OF HARTFORD, CONN.

Supreme Court of South Carolina.

July 21, 1909.

1. Insurance (§ 397^*)—Conditions—Breach —Waiver.

Adjustment of loss under a fire policy did not constitute a waiver of breach of a condition against additional insurance, where it did not appear that the adjusters knew, at the time, of the excess of insurance on the property.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1078, 1081; Dec. Dig. § 397.*]

2. Insurance (§§"288, 336*)—Fire Policy-Condition—Concurrent Insurance.

A provision of a fire policy, concluding that the entire policy, unless otherwise provided by an agreement indorsed thereon or added thereto, shall be void, if the insured now has, or shall, hereafter make or procure, any contract of insurance, whether valid or not, on the property covered in whole or in part by the policy in question, was valid.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 660, 856: Dec. Dig. §§ 288, 336.*]

3. Insurance (§ 640*) —Condition—Breach-Pleading.

Forfeiture of a fire policy for breach of condition against additional insurance is a matter of defense, which will defeat a recovery on the policy, unless plaintiff proves a waiver of the forfeiture in rebuttal; the insurer not being required to negative waiver as a part of its defense.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1618; Dec. Dig. § 640.*]

Appeal from Common Pleas Circuit Court of Bamberg County; Geo. E. Prince, Judge.

Action by J. A. Spann against the Phoenix Insurance Company of Hartford, Conn. Judgment for defendant, and plaintiff appeals. Affirmed.

H. M. Graham, for appellant.

Austin Branch and A. Wyman, for respondent.

WOODS, J. This appeal is from a judgment for the defendant on a fire insurance policy. The policy sued on was for $2,000, and was one of several policies outstanding on plaintiff's stock of goods when it was burned. The defense set up was violation of the following clause of the contract of insurance: "The entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void, if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on the property covered in whole or in part by this policy." The breach of the contract alleged was that the plaintiff had procured additional insurance to the amount of $14,000, when the defendant had consented to additional insurance to the amount of $8,000 only. The plaintiff testified that, when taking out the policy, he told John F. Folk, defendant's agent, of additional insurance beyond the $8,000, which defendant had contracted to allow. Folk in his testimony denied that such notice had been given him. The issue of waiver thus raised was really the only question in the case. It is true the plaintiff testified that Robertson,...