Tyner v. Cherokee Ins. Co.
| Decision Date | 20 May 1974 |
| Docket Number | No. 19825,19825 |
| Citation | 262 S.C. 462,205 S.E.2d 380 |
| Court | South Carolina Supreme Court |
| Parties | Harold TYNER, d/b/a Harold Tyner Real Estate, Plaintiff, v. CHEROKEE INSURANCE COMPANY, Respondent, and Old Charleston Insurance Company, Ltd., Appellant. |
Thomas Dewey Wise, Way, Burkett & Wise, Charleston, for appellant.
Charles S. Goldberg, Steinberg, Levkoff, Spitz & Goldberg, Charleston, for plaintiff.
Augustine T. Smythe, Buist, Moore, Smythe & McGee, Charleston, for respondent.
Plaintiff was issued two policies of fire insurance on a building owned by him in Charleston South Carolina--one issued by defendant Old Charleston Company, Ltd., (Old Charleston) for the period from June 3, 1970 to June 3, 1973, with coverage of $37,000.00 on the building and $10,000.00 on the contents; and the other, subsequently, by defendant Cherokee Insurance Company (Cherokee) for a period from June 3, 1972 to June 3, 1975, with coverage on the building of $60,000.00 and $10,000.00 on the contents. Each policy contained a valuable papers coverage of $500.00. The insured building and its contents were severely damaged by fire on August 28, 1972. This action was subsequently brought by the plaintiff-insured against both Old Charleston and Cherokee to recover the loss, stipulated to be $68,719.23.
The issue to be decided concerns the extent of the loss that must be paid by each of the defendant companies, that is, whether the entire loss should fall upon one or whether each should pay its proper pro rate share. The trial judge, to whom all issues of law and fact were submitted, held that both policies were in effect and the loss should be prorated between the companies in proportion to the coverage afforded by the respective polices. Only Old Charleston has appealed from that judgment.
At the time of the loss neither policy had been cancelled by virtue of any of the policy provisions; and the parties agree that the issue of liability turns upon whether the policy issued by Old Charleston had been effectively cancelled by substitution of the policy subsequently issued by Cherokee.
An insurance policy may be cancelled by mutual agreement of the parties without compliance with the methods of cancellation set forth in the policy. Generally, cancellation may not be affected by one of the parties without the agreement of the other. Dill v. Lumbermen's Mutual Ins. Co., 213 S.C. 593, 50 S.E.2d 923; Lundy v. Lititz Mutual Ins. Co., 232 S.C. 1, 100 S.E.2d 544. In Dill, the court held:
The foregoing principles apply to the cancellation of an insurance policy...
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