Vaught v. Nationwide Mut. Ins. Co.

• Decision Date: 12 July 1967
• Docket Number: No. 18677,18677
• Citation: 156 S.E.2d 627,250 S.C. 65
• Court: South Carolina Supreme Court
• Parties: Jimmy Wayne VAUGHT, Respondent, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant.

Page 627

156 S.E.2d 627

250 S.C. 65

Jimmy Wayne VAUGHT, Respondent, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant.

No. 18677.

Supreme Court of South Carolina.

July 12, 1967.

Burroughs & Green, Conway, for appellant.

Stevens & Holt, Loris, for respondent.

LEWIS, Justice.

The plaintiff recovered judgment against Wallace Wholesale Company, Inc., for injuries sustained by him when his automobile collided with a truck owned by the company and driven at the time by its employee. Wallace Wholesale Company was allegedly the named insured in an automobile liability insurance policy issued by the defendant Nationwide Mutual Insurance Company; and, upon the failure of the insured to pay the foregoing judgment, plaintiff brought this action against the defendant insurer to collect the amount thereof in accordance with the terms of the policy. The defendant denied liability, asserting in its answer a general denial and that it was relieved of its obligation under the policy by the alleged failure of the insured to cooperate in the defense of the original action brought by plaintiff.

Upon the trial of the case, the defendant timely moved for a directed verdict in its favor upon the grounds that (1) the plaintiff had failed to prove by any admissible testimony the existence of the policy under which the action was brought and (2) the testimony conclusively showed that the defendant was relieved of liability by the failure of the insured to cooperative in the defense of the original action as required by the policy terms. This motion was denied and the issues submitted to the jury for determination, resulting in a verdict for plaintiff. Post trial motions by the defendant for judgment non obstante veredicto and, in the alternative, for a new trial were denied, from which the defendant has prosecuted this appeal.

The defendant first contends that the lower court erred in admitting in evidence a photostatic copy of the policy involved and witout such copy a directed verdict should have been granted because there was no other proof of the existence of the policy of insurance under which recovery was sought.

The plaintiff proved the terms of the policy by introducing secondary evidence thereof in the form of a photostatic copy. The president of the insured was called by plaintiff as a witness. The president testified that he did not know the whereabouts of the original policy issued by the defendant but that a photostatic copy exhibited to him was a true and correct copy of the original and that the insured had paid the premiums thereon. The trial judge, over defendant's objection, admitted the photostatic copy of the original policy in evidence.

The applicable principles governing the admission of secondary evidence are set forth in Wynn v. Coney, 232 S.C. 346, 102 S.E.2d 209. The following was there quoted with approval from Beaty & Co. v. Southern Railway Co., 80 S.C. 527, 61 S.E. 1006:

'Under the law of this state, and in accordance with the general rule, where the writing containing or constituting the primary evidence of the fact to be proved is satisfactorily shown to have been lost or destroyed without the fault of the party desiring to prove the fact, secondary evidence becomes admissible.'

And the following from Sample v. Gulf Refining Co., 183 S.C. 399, 191 S.E. 209:

'The original of a document is, of course, the best evidence as to its contents, and before the receipt of secondary evidence can be required, it is necessary for the party offering the evidence to make certain preliminary proof to establish the necessity and propriety of the receipt of the secondary evidence in place of the original document; and while the sufficiency of this preliminary proof does not rest in the uncontrolled discretion of the trial judge, as statements in some of the cases seem to imply, yet at least some if not a large measure of discretion in this respect necessarily is vested in the trial judge. (Citing cases). Obviously, there also must be some proof tending to show the former existence and execution of the original instrument. (Citing cases).'

The rule with reference to the use of photostatic copies is thus stated in 29 Am.Jur. (2d), Evidence, Section 490:

'In the absence of a statute providing otherwise, photographic or photostatic reprductions of writings are ordinarily regarded as only secondary evidence and not admissible in evidence over the objection of an adverse party unless a basis is laid for their reception by showing that the original cannot be produced. * * * However, where a party offering a photographic or photostatic copy of a writing or document in evidence shows that he cannot produce the original because it cannot be found after a reasonable search therefor, or because it has been destroyed, or because it is outside the jurisdiction of the court, and further shows that the reproduction is an accurate copy of the original, the photographic or photostatic copy may then be properly admitted.'

Annotations upon the subject may be found in 142 A.L.R. 1270 and 76 A.L.R.2d 1356.

The plaintiff is suing in this case as a third party beneficiary under an insurance contract between the defendant and its insured. The original policy was issued to the insured and the defendant denied having it in its possession. Admittedly, the plaintiff would not have had the policy in his possession at any time. The president of the insured, who presumably would have had control of the original policy, testified that he did not know where the original was but that the document offered by plaintiff was a direct photostatic copy of the original, upon which the insured had paid all premiums due. Since the defendant issued the policy, it was thoroughly familiar with its terms. The record further shows that the accident out of which this controversy arose was immediately reported to an agent of the defendant and that defendant, recognizing the existence of the policy, provided legal representation for the insured in defense of the ensuing action brought by plaintiff.

The testimony established the existence of the original contract of insurance and it was clearly inferable that the original could not be produced at the trial. While it is not included as a part of the record on appeal, the trial judge had the photostatic copy before him and we think, under the present facts, he correctly exercised his discretion in admitting such copy in evidence.

Since the photostatic copy of the policy of insurance was properly admitted in evidence, the trial judge correctly refused to direct a verdict for defendant upon the ground that the plaintiff had failed to prove the existence of the policy and its terms.

The defendant also takes the position that the trial judge should have directed a verdict in its favor upon the ground that the evidence conclusively showed a failure on the part of the insured to cooperate in the defense against plaintiff's claim, as required by the terms of the...