Temptron, Inc. v. Dixie Fire & Cas. Co.

• Decision Date: 16 August 1962
• Docket Number: No. 4866,4866
• Citation: Temptron, Inc. v. Dixie Fire & Cas. Co., 127 S.E.2d 4, 241 S.C. 55 (S.C. 1962)
• Court: South Carolina Supreme Court
• Parties: TEMPTRON, INC., Appellant, v. The DIXIE FIRE AND CASUALTY COMPANY, Respondent.

Page 4

127 S.E.2d 4

241 S.C. 55

TEMPTRON, INC., Appellant, v.The DIXIE FIRE AND CASUALTY COMPANY, Respondent.

No. 4866.

Supreme Court of South Carolina.

Aug. 16, 1962.

Wyche, Burgess & Wyche, Greenville, for appellant.

Leatherwood, Walker, Todd & Mann, Greenville, for respondent.

BRAILSFORD, Justice.

An automobile belonging to Temptron, Inc., was involved in a collision on May 20, 1958.Temptron unsuccessfully defended a suit for damages brought against it by an occupant of the other car, and incurred and paid expenses and paid the final judgment.Claiming that this loss was covered by an automobile liability insurance policy, issued by The Dixie Fire and Casualty Company on April 1, 1958, in which Ramseur's, Inc. and Ramseur Equipment Company were named insureds, Temptron brought this action against Dixie to recover $3,084.45.Dixie pleaded that there was no such contract.The circuit court, after hearing argument of motions by both parties for the direction of a verdict, discharged the jury, sustained this plea, and awarded judgment in favor of Dixie.This appeal followed.The controlling question is whether there was a valid insurance contract between these parties on May 20, 1958.

Prior to October 1, 1957, Vardry Ramseur was prominent in the ownership and management of two close corporations, Ramseur's, Inc., of which he was president, and Ramseur Equipment Company.Ramseur and D. M. Beatty owned all of the voting stock in the latter corporation and Beatty was also active in its management.Beatty had no connection with Ramseur's Inc.The two corporations operated separate businesses from different locations in the city of Greenville.

At the close of the fiscal year ending September 30, 1957, Ramseur sold all of his interest in the Equipment Company to Beatty and his associates, and the name of the corporation was changed to Temptron, Inc.

Ramseur's, Inc. and Ramseur Equipment Company were the named insureds in an automobile liability policy, which had been issued by Dixie Fire and Casualty Company on April 1, 1957, for a term of one year.This policy was a renewal of an original similar policy issued April 1, 1956, for a like term.

The insurance coverage had been obtained by Vardry Ramseur, Jr. through Norwood Wilkins and Company, an authorized representative of Dixie and of several other insurance companies.Under the terms of the policy, the premium was estimated on the basis of certain declarations, including a list of all motor vehicles owned by the insureds on the effective date.The policy provided for an audit at the end of the term and an adjustment of the premium according to certain formulae, which took into account any vehicles acquired or disposed of during the period of coverage.The estimated premiums were paid in advance to the Norwood agency by Ramseur's, Inc., and the Equipment Company, which had no direct dealings with Dixie or its agent, paid its proportionate share of the premiums to Ramseur's on being billed by it.

As already indicated, the policy which was in effect on September 30, 1957, expired on April 1, 1958.A second renewal policy was mailed to Ramseur's by the Norwood agency, which again named the Equipment Company as an insured and listed two automobiles belonging to it as items 16 and 17 on the schedule of owned automobiles.Upon receipt of this policy, Vardry Ramseur, who had not requested a renewal, notified the Norwood agency that he no longer had any interest in the Equipment Company, then Temptron, Inc., and that he wanted liability insurance for Ramseur's only.An endorsement was issued and attached to the policy by which the name of the insured was changed to 'Ramseur's, Inc.'Temptron's listed automobiles were eliminated from the schedule and the estimated premium was remitted proportionately.The endorsement was dated May 12, 1958, effective April 1, 1958.

In this action, plaintiff seeks to recover on the policy of April 1, 1958, as a contract covering the loss of May 20, 1958.Plaintiff's contention is that the policy became effective when it was issued by the Norwood agency and mailed to Ramseur's, and that Temptron's status as an insured could not be rescinded without notice to it, nor by an endorsement which was not countersigned.We think that the circuit court was correct in concluding that Temptron never acquired any contractual rights under the policy.

The prior policy was for a definite term, which expired before the loss occurred.Neither party was obligated to renew it.This could be accomplished only by mutual assent.A new agreement, having all of the essentials of a valid contract, including a new consideration, was required.44 C.J.S.Insurance§ 283, page 1126.

The decision in Hodge v. National Fidelity Insurance Company, 221 S.C. 33, 68 S.E.2d 636, turned on the question of whether there was a valid contract for the renewal of a term policy.We quote from the opinion:

'As in the case of contracts generally, it is essential to the creation of a contract of insurance that there be an offer or proposal by one party and an acceptance by the other.Regardless of which party makes the offer or proposal, its acceptance by the other is necessary to the creation of the contract.Hydrick v. Rhode Island Insurance Co., 131 S.C. 8, 127 S.E. 367;Keller v. Provident Life & Accident Insurance Company, 213 S.C. 339, 49 S.E.2d 577;44 C.J.S., Insurance, § 232.The acceptance of a proposal for insurance must be evidenced by some act that binds the party accepting.A mental resolution, that can be changed, is not sufficient.Keller v. Provident Life & Accident Insurance Co., supra;Boone v. Standard Accident Insurance Co. of Detroit, 192 Va. 672, 66 S.E.2d 530, 535.'221 S.C. 41, 68 S.E.2d 638.

Acceptance by the insured of an offer to renew must include either the payment of the premium or the assumption of an obligation to pay it.'If the insured is not bound to pay the premium, the insurance company is not bound to cover the risk.'Boone v. Standard Accident Insurance Company, 192 Va. 672, 66 S.E.2d 530, 535.

Temptron did nothing which was intended or calculated to obtain a renewal of the insurance policy, either on the former terms or on any terms.Neither Beatty, nor any other representative of Temptron, had any communication about insurance with Ramseur's, Dixie or the Norwood agency until after the accident.Ramseur's was under no obligation to contract for Temptron's insurance and Beatty did not testify that he expected it to do so.

By mailing the policy to Ramseur's the Norwood agency offered to renew it on the former terms.Ramseur's rejected this offer and made a counter-proposal to contract for itself only.The insurance company accepted and the policy became effective as a contract on the terms of the counter-proposal.Temptron never contracted with Dixie for liability insurance.Ramseur's did not contract for such...