W.B. Boyle Co. v. Automobile Ins. Co. of Hartford, Conn.

Decision Date13 December 1932
Docket Number13538.
Citation166 S.E. 886,168 S.C. 63
PartiesW. B. BOYLE CO. v. AUTOMOBILE INS. CO. OF HARTFORD, CONN., and ten other cases.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court Of Sumter County; T. S Sease, Judge.

Action by the W. B. Boyle Company against the Automobile Insurance Company of Hartford, Conn., and others. From adverse orders defendants appeal.

Appeals from one order dismissed, and another order affirmed.

Joseph L. Nettles, of Columbia, and Shepard K. Nash and Epps & Levy all of Sumter, for appellants.

Lee & Moise, of Sumter, for respondent.

BLEASE C.J.

Each of these eleven suits, brought by the same plaintiff against the respective defendants, was for the recovery for loss and damage by fire, under separate policies of insurance; the fire alleged to have occurred being the same in each of the suits. The policy sued on was referred to in each complaint by its date and number. The amount demanded varied in the several complaints. Eight of the policies insured merchandise, consisting principally of hardware. The other three policies covered furniture and fixtures.

In each of the complaints, the description of the building, in which the merchandise, furniture, and fixtures were located, is practically the same, and it was described as "a two-story brick building occupied by the owner on the south side of East Liberty Street in the City of Sumter, S. C., bounded on the north by Liberty Street, east by Harvin Street, south by lands of the Estate of Pierson, and west by land of A. J. Ard." There was no allegation in any of the complaints that, because of a mistake or for any other reason, the policy sued upon had erroneously described the building.

The defendant, excepting Hardware Mutual Fire Insurance Company of the Carolinas, moved in each of the cases that the plaintiff be required to make the complaint more definite and certain "by stating specifically the building situated upon the land described in the complaint in which it is claimed the property insured in the policy sued upon in the complaint was contained." The motions were refused by his honor, the late Circuit Judge John S. Wilson.

The Hardware Mutual Fire Insurance Company of the Carolinas, answering the complaint in the suit brought against it, denied that it had insured plaintiff's merchandise located in the building described in the complaint, and alleged that it had insured, under the policy referred to in the complaint, certain merchandise contained "in the one-story brick building with metal roof, while occupied by the assured as a hardware store, situated at Nos. 24-26, on the South Side of East Liberty Street, Block 8, in Sheet 10, Sumter, S. C."

Each of the defendants in the other cases similarly, in connection with its denial that it had issued a policy covering the property described in the complaint, set up in its answer a description of the property covered by the policy issued by it, particularly describing the building referred to in the policy in which the property was located.

All of the defendants, in their respective answers, further alleged that the policy sued on contained a provision to the effect that, in case any other policy covered the property insured therein, then that defendant would not be liable under the policy for a greater proportion of any loss or damage sustained than the sum insured under its policy bore to the entire amount of insurance on the property insured therein, and there was additional insurance.

The respective answers contained, in addition to the matters before mentioned, allegations as follows: "That the location of the insured property is of great importance in the writing of a fire insurance policy; the location of the insured property is not described in the policy as set forth in the complaint; and that if it is the intention of the plaintiff to attempt to recover for a loss to property located at a place as described in the complaint (and this defendant denies that the plaintiff is so entitled), then the policy should first be reformed."

Following the filing of the answers, the defendant in each case gave notice that it would move for an order requiring the plaintiff to reply to the new matter set up in the answer, and that it would also move for an order placing the case on calendar 2, to the end that the equitable issues made in the pleadings in each case should be "promptly tried."

On hearing the two motions of the defendants, the presiding judge, Hon. T. S. Sease, granted the one requiring the plaintiff to answer to the new matter set up in the answers, but he refused the motion to transfer the cases to calendar 2 and refer the equitable issues. The circuit judge held that the pleadings did not "raise such issues as require reference to a Master, or Referee, but that any such issues can properly be tried on the law side of the Court."

Pursuant to the order of Judge Sease, the plaintiff replied to the new matter set up in the answers. First, it was alleged that the premises referred to in the complaint were "upstairs in buildings Nos. 24, 26 and 28 East Liberty Street, Sumter, S. C., and downstairs in Nos. 28, 30 and 32 East Liberty Street, Sumter, S. C."

Plaintiff further set forth in the reply that the insurance...

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