Trakas v. Globe & Rutgers Fire Ins. Co. of New York

• Decision Date: 29 August 1927
• Docket Number: 12262.
• Citation: 139 S.E. 176,141 S.C. 64
• Parties: TRAKAS v. GLOBE & RUTGERS FIRE INS. CO. OF NEW YORK.
• Court: South Carolina Supreme Court

139 S.E. 176

141 S.C. 64

TRAKAS v. GLOBE & RUTGERS FIRE INS. CO. OF NEW YORK.

No. 12262.

Supreme Court of South Carolina

August 29, 1927

Appeal from Common Pleas Circuit Court of Cherokee County; S. T Lanham, Special Judge.

Action by S. P. Trakas against the Globe & Rutgers Fire Insurance Company of New York. Judgment for plaintiff, and defendant appeals. Affirmed.

Butler & Hall, of Gaffney, for appellant.

Brown & Boyd, of Spartanburg, and G. W. Speer, of Gaffney, for respondent.

BLEASE J.

From a verdict and judgment for the plaintiff for $1,000, in an action on a policy of fire insurance, obtained in the court of common pleas of Cherokee county, with Hon. S. T. Lanham special judge presiding, the defendant has appealed.

The policy provided $1,000 of insurance on a stock of merchandise, and $1,500 on fixtures and furniture, contained in the same storeroom, all of which, along with the building were totally destroyed by fire.

The defendant asked for a directed verdict in its favor on the whole case. The trial judge granted this motion as to the claim of $1,500 insurance on the furniture and fixtures, but submitted the claim of $1,000 for the insurance on the stock of goods to the jury.

A number of the defenses interposed, and some of the grounds of the motion for a directed verdict are not involved in the appeal, and it would needlessly incumber the opinion to state them. We refer only to those before this court for consideration.

The answer pleaded violation of the terms of the policy on the part of the plaintiff as to the "iron safe clause," and the one which prohibited the keeping and use of gasoline on the premises.

We gather from the record that the breaches of the written contract, mentioned above, were conceded by the plaintiff but he countered with the assertion that, as to these, there had been a waiver on the part of the defendant.

The essential facts brought out in the testimony, necessary to be stated here, and those upon which plaintiff depends to show waiver, were as follows: Plaintiff, a Greek, had, in Gaffney, a mercantile business similar to those so generally conducted by citizens of the Isles where "burning Sappho loved and sung," who have sought, and so often found, fortunes in "the land of opportunity in the West." It was an establishment of this kind, with its fruits, nuts, candies, a "hot dog" stand, and a peanut parcher, with other fixtures, furniture, and merchandise, that was burned, although "Pete," the Greek, emphatically disclaimed any negligence on his part as to the cause of the fire-and there was absolutely no evidence showing that "burning Sappho" had anything to do with the burning. The agent of the insurance company, the defendant here, had his office just two doors from Pete's place. He solicited the insurance and wrote the policy almost a year before the fire occurred. He looked well through all the merchandise and at the fixtures before the policy was written. He knew Pete did not have an iron safe, and was kind enough to offer to keep the insurance policy for the insured in his office, but this offer Pete declined, as he preferred for the paper to be kept in his lock box at the bank. The agent saw the books, invoices, and inventories in the wooden desk on a counter in the front part of the store. The agent and Pete were, evidently, good friends, for the former was in the "candy kitchen" almost every day from the date the policy was delivered until the fire destroyed the insured property. The peanut parcher was operated with gasoline, and a little of that liquid, from 1 to 2 gallons, was kept on hand for that purpose. There was never any complaint from the agent, or any one else, that plaintiff was violating the terms of his policy until after the fire occurred and the plaintiff wanted his insurance money. Pete's testimony must have been true, for the record before us fails to show any denial by any person, and the agent did not testify.

Since a peanut parcher, like an iron safe, is easily seen, it must be apparent that the agent knew that the safe was not in the place of business and that the parcher was there. It is a matter of common knowledge to those who know anything about a Greek "candy kitchen" that a peanut parcher is always put at the front of the store, and where the municipal authorities will permit, it is put on the street, so that passers-by will inhale the delicious aroma and be tempted to purchase. The agent of the Insurance Company undoubtedly must have known that this parcher was operated with gasoline, for that fluid has an odor peculiar to itself.

It is well established in this state that forfeitures of insurance contracts are not favored by the courts and the law as to waivers of such forfeitures has been announced many times. We do not think it necessary to undertake a review of all these cases, or feel that it is worth while to even cite them. Under the testimony given, the trial judge was right in leaving the issue made to the jury for settlement.

The policy of the defendant permitted additional insurance on the fixtures of not exceeding $500, and not exceeding $1,000 on the merchandise. After delivery of that policy, plaintiff procured other insurance with another insurance company to the amount of $1,500 on his fixtures and $1,000 on the stock of merchandise. There was, therefore, according to the terms of defendant's policy, excessive insurance to the amount of $1,000 on the fixtures. The total insurance on the merchandise was within the limitation of defendant's policy. There was no evidence showing any waiver by the defendant as to the forfeiture of the policy on that account. Accordingly, the trial judge directed a verdict in favor of the defendant as to the insurance carried on the fixtures, and there was no appeal by the plaintiff therefrom.

The defendant, in its answer, and by its motion for a directed verdict, took the...