Graham v. Fire Insurance

48 S.C. 195 | S.C. | 1897

Lead Opinion

The opinion of the Court was delivered by

Mr. Justice Pope.

The defendant, on the 5th da}' of April, 1894, issued to the plaintiff, John M. Graham, its policy of insurance, wherein, for a premium of $ 15, it agreed to indemnify against loss by fire “his stock of material for the,manufacture of cotton and woolen hosiery, raw, wrought, and in process thereof, while contained in the two-story brick and shingle roof building situated within the walls of the South Carolina Penitentiary, at Columbia, S. C. Any loss that may be ascertained and proved due the assured shall be payable to G. H. Tilton, as his interest may appear.” The policy contained the usual printed stipulations of those issued on personal property. Two of these, however, were in these words: “This policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance, or the subject thereof, or if the interest of the insured in the property be not truly stated herein, or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after loss * * * This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void * * * if the interest of the insured be other than unconditional and sole ownership.” * * * On the 25th day of April, 1894, the stock of material, valued at more than $5,000, was destroyed by fire, except about $600 worth; thus the loss was about $4,400. There was concurrent insurance — three policies-— each for $1,000, which latter was the amount named in the policy issued by defendant. Soon after the fire an agent of the defendant, with agents of the companies which had issued concurrent insurance, were on hand to adjust the loss, or rather losses. G. H. Tilton also appeared on the scene; his home was in the State of New Hampshire. John M. Graham informed the. insurance companies at once that G. H. Tilton was the sole owner of the material insured, and that his (Graham’s) connection with the hosiery manufactory was superintendent. After some time proofs of loss were submitted. Three of the companies paid up in full, but the defendant company declined to do so. Hence this suit. The complaint alleges the ownership of the property destroyed by fire to be in G. H. Tilton, but that the same was in the sole custody and control of John M. Graham,- under a contract therefor between Graham and Tilton, which included the insurance of the property against loss and damage by fire; that under said contract the said Graham was to receive from said Tilton an annual compensation for his services- so long as said contract was of force, and that the said Graham was pecuniarily interested in the preservation and continued existence of said property. The contract for insurance was set out, inclusive of the policy itself, as part of the complaint. In the fourth clause of the complaint was set out the allegation that the insurance company was aware that Tilton owned the property, but that the same was in the exclusive possession of said Graham, and that he had a pecuniary interest in the preservation of said property, and that the policy of insurance was issued by the defendant in the name of the plaintiff, J. M. Graham, with the endorsement in favor of said G. H. Til-ton, as his interest might appear, primarily for the benefit of Tilton, but also for the benefit of said Graham as aforesaid, and that the said policy was received by the said plaintiffs-in good faith as insuring their interests as aforesaid. In the fifth clause is set out the loss of property by fire on the 25th April, 1894, and plaintiffs’ loss thereby. In the sixth clause it is alleged that proofs of loss and interest have been furnished the defendant, and also that all conditions have been truly observed by the plaintiffs. In the seventh clause demand of payment and its refusal are set forth.

The answer admits that the property destroyed by fire was covered by. the policy issued by it; that Tilton was the owner thereof; that said property was in the exclusive possession of Graham; that there were three other policies of concurrent insurance, each for $1,000, on said property; that proofs of loss have been furnished to it, and demand made for payment of policy. And affirmatively answering, the defendant alleges that the plaintiff, John M. Graham, in whose name the policy was issued, was bound by the express conditions, covenants, and promissory warranties in the policy named — two of which was (1) that the entire policy should be void if the insured has concealed or misrepresented any material facts and circumstances connected with the insurance, and (2) that the entire policy should be void if the interest of the insured be other than unconditional and sole owner; and that John M. Graham neither fully disclosed the material facts and circumstances connected with the insurance nor was he the unconditional and sole owner of said property.

The action came on for trial before the Hon. I. D. Witherspoon and a jury at the fall term, 1895, of the Court of Common Pleas for Richland County. After plaintiffs had closed their testimony, a motion for nonsuit was made and refused. The verdict was in favor of plaintiffs for full sum complained for, including interest. Therefrom the defendant appealed to this Court on many grounds and subdivisions thereof, which will now be disposed of by us. The report of the case will include the exceptions, and also the charge of the presiding Judge. We will consider them as embraced in these divisions: First. Did the Circuit Judge err in admitting the testimony objected to by the defendant? Second. Was the Circuit Judge in error in refusing the defendant’s motion for a nonsuit? Third. Were the refusals to charge and the charge itself erroneous in the particulars complained of?

1 I. As to the first ground of appeal. While the plaintiff, J. M. Graham, was being examined on his own behalf and that of his coplaintiff, Tilton, his counsel asked him if the paper, containing the agreement between himself and G. H. Tilton, touching the control and management of the hosiery mill by Graham as its superintendent, was the contract between them as to these matters. To this question the defendant promptly objected, because it was not in response to any of the issues raised by the pleadings, inasmuch as the only reference to such contract in the complaint was a conclusion of law; that the defense was surprised at the contents of the paper, and second, that the contract of insurance sued upon is ih writing, and is clear and explicit in its terms. The defendant objects to any parol evidence being introduced to vary or contradict the clear and explicit terms of the contract, or any evidence to do so. To understand the ruling of his Honor, the Circuit Judge, whereby he admitted this testimony, it is important that we should understand his environments. In the first place, the Circuit Judge was bound to keep in his mind that, this being an action to recover upon a policy of insurance of personal property destroyed by fire, while such policy was of full force, the laws of this State, as fixed by the decisions of our court of last resort, hold: “Insurance is not an incident to the thing insured, but indemnity or compensation to the person insuring for the loss which he sustained” (italics ours). Annelly v. DeSaussure, 26 S. C., 505; Pelzer Manufacturing Co. v. Sun Fire Office, 36 S. C., 266, 267; Carpenter v. Insurance Co., 16 Peters, 496; Imperial Fire Insurance Co. v. County of Coos, 151 U. S., 452. The contract of insurance sued upon, by its express terms, provided that any loss to be recovered by the assured should be payable to G. H. Tilton, “as his interest may appear;” and this is the only reference to G. H. Tilton in the entire policy of insurance. Inasmuch as the policy of insurance failed to indicate what was the interest of G. H. Tilton in the personal property insured against loss by fire, it is very manifest that if such interest of G. H. Tilton is to be made to appear, it must be done by evidence outside of the terms of the policy itself. Then, again, the polic3? itself fails to indicate what meaning the parties to it intended should attach to the word “interest.” In policies of insurance of personal property, the word “interest” is sometimes held to mean “insurable interest”- — -1 Bouvier Taw Dictionary. But it may be that another meaning or other meanings may be ascribed to it. By the pleadings in the case at bar it was distinctly announced that G. H. Tilton was the actual owner of the personal property which was insured, but that the same personal property was in custody and control of the plaintiff, J. M. Graham, under a contract with the said Tilton. Hence it seems to us that it was a pertinent inquiry as to what were the terms of that contract. We are at a loss to see any controlling influence in the objections of the defendant to the introduction in evidence of such a contract, for it would in no wise infringe upon the rights of the defendant, that Tilton and Graham had made a contract between themselves as to this property, which was to last from the year 1891 until twenty years thereafter, in the light of the contract for the insurance of this personal property, wherein it was alleged that it was the property of J. M. Graham, but coupled with the distinct provision that any loss under the policy to be recovered by J. M. Graham, “should be payable to G. H. Tilton as his interest may appear.” To say that the introduction of such testimony would serve to vary or contradict the written terms of the policy of insurance itself will not do, for the parties to the contract of insurance had it in their power, when such contract was entered into, to make clear what they meant by the use of the words just quoted, and they did not do so. The Circuit Judge in construing this policy of insurance could not tell what the parties to it intended; hence the necessity of testimony to show what Tilton’s interest in such insured property was. This exception is overruled.

2 (b) The second ground of appeal. When the witness for plaintiffs, J. M. Graham, was asked to state how he came to insure the property after the year 1891 — the date of his contract with G. H. Tilton — -the defendant objected, npon these grounds: First, that the defendant had no notice of such verbal agreement or of any relation subsisting between Tilton and Graham in reference to the property mentioned in the policy; second, because there was no ambiguity or uncertainty in the contract, and it should have been conclusively presumed to be the whole engagement of the parties thereto, and it was error to admit evidence seeking to include under said policy an insurable interest not mentioned in the policy, and negatived by its very terms, and of which there was no proof that the defendant had any notice; and third, on the ground that defendant was surprised thereby, and misled to its prejudice. Again, it is our duty to remember that the Circuit Judge had the policy before him, and that such policy contained the fatal words, “any loss, &c., to be paid to G. H. Tilton as his interest may appear.” What G. H. Tilton was referred to? The policy failed to show who he was. What was the interest of G. H. Tilton that might be made to appear? The policy is silent. What business corporation guided by intelligence could afford to remain ignorant of who G. H. Tilton was, and of what interest he might be possessed? This policy by its very terms necessitated a recourse to proofs, de hors the policy itself, to show these facts. The plaintiffs accompanied their complaint in this action with a copy of this policy of insurance. The defendant had notice of these terms by the complaint itself, and it is too late to talk of a surprise by which they were misled to their prejudice by allowing this testimony to be introduced. This exception is overruled.

3 (c) To make plain the question raised by this the third ground of appeal, it may be well to state the facts upon which it is based. The policy of insurance sued upon, as we have before stated, stipulated that the defendant did insure against loss by fire the personal property as the property of J. M. Graham, but with the provision that “any loss that may be ascertained and proved due the assured shall be payable to G. H. Tilton as his interest may appear.” That said Graham, when the adjusters of the different insurance companies which had policies outstanding on said property when destroyed by fire, appeared in the city of Columbia, S. C., immediately after the fire, told them that the property was owned by G. H. Tilton, and that thereupon the said adjusters required G. H. Tilton to repair to his home in the State of New Hampshire in order that he might furnish proofs of loss from his own books, and that some weeks afterwards said adjusters were notified that Tilton had the proofs of loss, as ascertained from his own books, ready in Columbia for their inspection, and that thereafter the said adjusters returned to the said city of Columbia, S. C., and upon said proofs from the books of Tilton being inspected by them, they, the adjusters, directed the said J. M. Graham to make up proofs of loss, which he did; and that while three companies paid up their losses,-the defendant refused so to do. Upon these facts the plaintiffs desired to predicate the proposition that the defendant was thereby estopped by its conduct to deny the validity of plaintiffs’ claim for the insurance money under the policy sued upon. The witness, J. M. Graham, was asked to state these facts, but the defendant objected on the grounds: first, that at the time of the occurrence of which he was about to testify, the said Graham was fully apprised of the purpose of the defendant to contest any liability under this policy of insurance by reason of the fact that he was not the unconditional owner of the property insured, and that the defendant in making its requirement of proofs of loss was but in the exercise of its rights under its contract, with no evidence of the abandonment of such defense; and second, because the evidence offered did not show any intentional abandonment of' his right to hold to the contract of insurance, and in no way caused the plaintiffs to abandon their position or suffer any injury, loss, &c. We cannot see why the plaintiffs should not be allowed to show by their proofs that the defendant by its conduct was estopped from contesting the plaintiff’s right to recover under the policy. We venture no opinion, for under the law we are allowed to express no opinion as to the sufficiency of this testimony to establish this estoppel. The Circuit Judge was only concerned as to its admissibility, and he held it was competent. We see no error here. Besides all this, the very grounds of objection only go to . the sufficiency of the testimony, and of this the Circuit Judge could express no opinion.

4 (d) The fourth ground of appeal relates to the objection of the defendant to the witness, Graham, stating what conversations he had with, or what directions he, Graham, gave to Mr. W. C. Swaffield, who procured for him the policy sued on, on the sole ground that the defendant was not present when such conversation or direction occurred. The defendant is a corporation, but we suppose the appellant means to say the corporation was not present by any of its agents. His Honor'only admitted this testimony upon the assumption, no doubt, that while no such age:it might have been present to hear the conversation or direction in question, yet it was afterwards communicafed to the agent of the defendant. Mr. Graham did not affect this insurance in person, but through Mr. Swaffield, as his agent. Under the explanation just made, we see no objection to the testimony.

5 (e) The next, the fifth ground of appeal, relates to the competency of the testimony of Mr. Swaffield, as the agent of the plaintiffs, in detailing his declarations to one Mr. Fripp, who was connected with the fire insurance agency of Mr. Allen Jones, from which agency the policy now sued on was obtained. We will state the circumstances so that we may more correctly pass upon the ruling of the Circuit Judge on this point. Allen Jones operated an insurance agency in the city of Columbia, S. C. He had in his employment a young man, Mr. Fripp, to whom was assigned many duties incident to the issue of policies of fire insurance, but not to the extent of countersigning the same — that part of the work was always performed by Mr. Jones himself. While Mr. Fripp was employed during the month of March, 1894, Mr. Jones represented the defendant company, and also another company, the Fire Assurance Company of Philadelphia. Upon the application of Mr. Swaffield, as the agent of J. M. Graham, to Mr. Fripp for $1,000 insurance on the property now under discussion, Mr. Fripp was told by Mr. Swaffield exactly how Mr. Tilton stood to this property, viz: that he was the owner, and that J. M. Graham was his superintendent in charge of the property. The policy applied for was issued by the said Fire Assurance Company of Philadelphia; but within a short time, say a week or ten days, this company, from its home office in Philadelphia, ordered the policy cancelled, which was done; and early in the month of April a policy was issued by Mr. Jones, as agent in the defendant company. Mr. Fripp left Mr. Jones’ employment on March 31st, 1894. Mr. Swafifield could not state whether he had told Mr. Jones the facts he had communicated to Mr. Fripp; he was impressed that he had. But it was desired to have Mr. Swafiield testify as to the communication he had made to Mr. Fripp in regard to Tilton’s ownership of the property, and that this was the cause of the insertion of the clause in the policy that all losses should be paid to Tilton, as his interest might appear. Judge Witherspoon on this point ruled as follows: “Under the allegations of the complaint, and the terms of the policy issued to J. M. Graham, I hold, under the authority of Pelzer Manufacturing Company v. The Sun Fire Insurance Company, 36 S. C., that it is competent for the plaintiff to offer evidence to show that, at the time of the issuing of the policy and the receipt of the premium by the company, the agent of the company issuing the policy knew the relation then existing with reference to the property in dispute between Graham and Tilton. I further hold that the admission of such testimony does not violate the general principle or rule, that a written instrument cannot be altered or the terms thereof varied by parol testimony.” Mr. Chief Justice Mclver, in his elaborate opinion in the case of Pelzer v. Sun Ins. Co., 36 S. C., 333, quotes with approval this language used in Menck v. Home Insurance Company, 9 Am. St. Rep., 160 (76 Cal., 51): “The tendency of the decisions is plainly to hold all these conditions waived, which to the knowledge of the agent would make the policy void as soon as delivered. Otherwise, the company would knowingly receive the money of the applicant without value returned, and the whole transaction would be a palpable fraud.” Hence, if this defendant company knew as a fact that Tilton was the actual owner of this property, and that J. M. Graham held it as his superintendent only, although it was recited in the policy that it was the property of Graham, coupled with the stipulation that all damages thereunder should be payable to Tilton, as his interest might appear, then the defendant company was bound to make good any loss under such contract; for otherwise, such “company would knowingly receive the money” of the applicant, without value returned, and the whole transaction would be a palpable fraud. And at page 269 of the same case, the Chief Justice of this Court observes: “Insurance companies or their agents are, of course, presumed to know what facts and circumstances are material to the risk offered much better than the persons who are applying for the insurance; and if they choose to accept the insurance without inquiry, and when a loss occurs it appears that some fact which the insurance companies may regard as material to the risk was not communicated by the insured, common honesty and fair dealing forbid that this shall operate as a forfeiture of the policy, unless it also appears that the insured either knew at the time, or ought to have known, that such fact was material. Inasmuch as insurance companies, when applied to for insurance, have the right to make, and, as a matter of fact, do make, the fullest and most minute inquiries, when the application is in writing, the insured has a right to assume, when no such inquiries are made, either that the insurance companies or their agents are fully acquainted with all the facts material to the risk or that they do not regard the facts as are not stated as material.” The 'agent, Mr. Allen Jones, had just issued a similar policy to the same party, on the same property, in another company, which had just-been cancelled, acting in the issuing of such policy through his clerk, Mr. Fripp, to whom Mr. Swafheld, as the agent of the plaintiffs, had made full disclosure as to Tilton’s ownership and as to Graham’s connection therewith, and on the 5th day of April, 1894, nota month after the issuing of the first policy, the same agent, Mr. Jones (who was a fully commissioned local agent of the defendant company), was about to issue a new but similar policy to the same parties, on the same property, in another company, it became important to the plaintiffs to show what notice such agent had given him touching this property, so far as its ownership was concerned. The testimony was relevant and admissible. It cannot be said that Mr. Jones, as agent, was not bound by the information his own clerk had received in the due course of his employment by him. All this taken in connection with the charge of the presiding Judge, “In order for notice to Fripp to.be binding on this company, it must appear that Fripp was Jones’ agent at the time, and that he had authority to bind the company in the way indicated.” This ground of appeal is dismissed.

6 (f) The sixth ground of appeal cannot be sustained. It was perfectly competent for the plaintiffs to show, if they could, that the defendant company admitted notice of Tilton’s ownership of the property at the time the policy was issued, as it was before stated, and to do this, no more efficacious mode existed than of showing that the agent, Mr. Allen Jones, who issued the policy, admitted that fact. This was the tendency of the testimony of Col. Marshall and- Mr. Seibels, the two witnesses who were introduced for this purpose by the plaintiffs, and whose testimony was objected to. As to the sufficiency of this testimony, that was quite another matter, and is not, and cannot be, before us.

7 8 II. The seventh ground of appeal questions the correctness of the refusal of the Circuit Judge to grant a nonsuit. First. “Because it appeared from the evidence beyond dispute that Graham was not the sole and unconditional owner of the property mentioned inthe policy.” Granted that the evidence and admissions established the fact that Graham was not the sole and unconditional owner of the .property insured, this would not necessarily defeat the plaintiffs, for there was testimony before the Court going to show that the defendant well knew, or was bqund at its peril to know, that Tilton was the unconditional owner of that property, at the very moment it issued its policy with a contrary recital therein, and yet, after that knowledge, received the premimn for this insurance. There was evidence before the Court going to show that Graham had an'insurable interest in this property. Second. “Because there was no evidence upon which to base an estoppel against the defendant, preventing its claim that the policy was void from its inception.” The 'estoppel here involved is.an estoppel by conduct. This Court, in Bull v. Rowe, 13 S. C., 370, thus defined it: “As we understand it, estoppel by conduct is when one party has been induced by the conduct of the other to do or forbear doing something which he would not or would have done, but for such conduct of the other party. Bigelow on Estoppel', 480. The conduct which is claimed to operate as an estoppel must have induced action, the disavowal of which would be inequitable, and which, therefore, the party who holds out the inducement is estopped from disavowing. There is no estoppel without fault to the injury of another.” Now in the case at bar, there was strong testimony going to show that the defendant knew when it issued this policy of insurance all the facts relating to the ownership of the property by Tilton, and not by Graham, which latter was set out in its policy; and that after this knowledge, that full value was paid for this insurance; that the plaintiffs intended this property to be insured against loss by fire; that the property had been destroyed by fire; and, thérefore, could' not now be insured. It occurs to us that there was some testimony, to state it most mildly, which it was proper for the jury to pass upon, and which,- if true, would estop the defendant from claiming its policy void.

Third. “Because the doctrine of estoppel and waiver is not applicable when the point in issue is as to the subject of insurance, and the contract is explicit on that point.” We might be content to quote the words of defendant’s attorneys in this appeal: “There is no magic in a contract of insurance; it must be judged of and construed like all other contracts between man and man.” Although we here state that this language is quoted from appellant’s argument, yet it is but just to say it is there recognized and reproduced from the opinion of Chief Justice Mclver, in Pelzer &c. v. Sun &c., 36 S. C., 213. This ground of appeal is dismissed.

9 Fourth. “Because the plaintiff, John M. Graham, was, byr the retention of the policy without objection, himself estopped from claiming that it did not contain the contract of insurance as agreed, or that he -was not bound by its explicit terms.” We cannot regard this proposition as good ground for a nonsuit. Graham retained the policy of insurance, as issued by the defendant, with full faith that he had carried out the directions of his employer, Tilton, because he saw from the policy that the property was accurately described, and an indemnity promised,.in case of its destruction by fire, to be paid to the .true owner, Tilton, thereby protecting to him the property he was, by his contract with Tilton, to manage for twenty years at a remuneration liberal in its terms (for it was to last during his life, and if he should die, survive to his wife during the twenty years provided for). Graham is to-day satisfied with the contract of insurance, and in this action seeks its enforcement. We cannot see how the application of the doctrine of estoppel can be made to apply to him.

Five. “Because, if the doctrine of estoppel was applicable against defendant, it extended no further than to cover whatever individual insurable interest the said Graham may have had in the property, and for this insurable interest no recovery could be had, for the testimony conclusively showed that the said Graham had suffered no injury to that individual insurable interest.” We have heretofore held that there being testimony before the Court upon which, if true and .sufficient, the doctrine of estoppel might be successfully applied as against the contention of the defendant, that its policy of insurance was void, no more need now be said on that part of this ground of appeal. So far, however, as the insurable interest of Graham is affected by this ground of appeal, we cannot agree with the appellant, for the reasons we shall now set forth in our treatment of the next ground of appeal. We find no fault with the refusal of the Circuit Judge to grant a nonsuit.

10 III. We will next consider the alleged errors of the Circuit Judge in his charge to the jury. First. The Circuit Judge erred in his refusal to charge that Graham had no insurable interest in the property insured under his written and verbal contract with Tilton. If we were to take this proposition literally, it might well be said that the appellant had sought a charge from the presiding Judge upon the facts, which, of course, the Judge could not do. But we will assume that the appellant meant to say that if the facts are established as set out in the contract in writing between Tilton and Graham, and also as embraced in the oral agreement between the same parties, then the question is raised, that, under such facts, Graham had no insurable interest. The Circuit Judge, in his charge to the jury, made these quotations from 1 May on Insurance, section 80, p. 144: “Whoever may be fairly said to have a reasonable expectation of deriving pecuniary advantage from the preservation of the subject-matter of insurance, whether that advantage enures to him personally or as the representative of the rights or interests of another, has an insurable interest.” And from the conclusion of the same section, the Circuit Judge quoted these words: “Persons charged either specifically by law, custom or contract with the duty of caring for and protecting property in behalf of others, or having the right to so protect such property, though not bound thereto by law, or who will receive benefit from the continued existence of the property, whether they have or have not any title or estate, or anjr lien upon or possession of it, have an insurable interest.” In Rapalji & T. Raw Diet., it is said: “In the law of insurance, a person is considered to be interested in property when the destruction or injury of the property would expose him to pecuniary loss;” and quite an array of authorities is cited in support of this enunciation of the law. By reference to the contract made between Tilton and Graham in February, 1891, it will be seen that twenty years term of service as superintendent is provided for Graham at an annual salary, after the year 1891, of $2,500, and that in case he dies before the period of twenty years, his wife is to be paid $1,200 per year; and in case of his or her death during that period, his children shall be paid $1,200 per annum. Also, that if Tilton wishes to discontinue business during that period, important privileges as a purchaser are secured to Graham. By parol, it was agreed between Tilton and Graham that the latter should insure the property. It seems very clear to us, that there was an insurable interest in Graham as well as Tilton in this property. It can make no difference that, after the property was destroyed by fire, Tilton re-established the hosiery business and continued Graham’s salary. It must be remembered that he has secured $3,000 of the concurrent insurance on this property, and it is not at all unlikely that he acted as if this policy was cash in hand, b3' anticipating its payment. But be these last matters as they may, Graham had an insurable interest. Suppose, for instance, that by the destruction of insured property, the mill, too, had been destroyed without any insurance, and that it had been owned by Tilton, and the loss had been so great that Tilton was unable, from the lack of means, to rebuild and re-equip his mill, although the insurance money recovered on the personal property was sufficient to re-establish a hosiery mill in leased quarters, would not Graham have some rights, under his contract with Tilton, he could enforce in equity? The presiding Judge was not in error here.

11 Second. So far as the ninth ground of appeal is concerned, it seems to us to present an abstract question of law.

If Graham had no insurable interest, and the defendant, when it issued its policy in Graham’s name, as owner, with the loss payable to' Tilton, as his interest may appear, and it did appear that the company knew he, Tilton, was the owner of the property, though it was in the name of Graham, as owner, how did thé Judge commit any error in the charge? We cannot see. The contract itself provided for Tilton being paid the whole insurance money; it is not a case of a policy being' taken out by a person not the owner, with no. reference to the interest's of the owner, but quite the contrary. “Let our just censure attend the-true event.” This ground of appeal is dismissed.

Third. The tenth ground of appeal will not be considered by us, because it is certainly an abstract proposition of law. The verdict rendered by the' jury shows conclusively that they were not influenced by it in any manner .whatsoever, for they, the jury, found the exact amount due under the policy, viz; the sum of $1,000, and interest thereon after sixty days from the notice of proofs of loss, thus showing conclusively that they paid no attention to any insurable interest of Graham to be paid to Tilton, so far as the value of that insurable interest of Graham was concerned.

Fourth. The eleventh ground of appeal is next in o'rder. A comparison of the terms of the request to charge with the actual charge of the Judge will show that he protected the defendant in these matters here embraced fully and effectually. We overrule this gi'ound of appeal.

Fifth. The twelfth ground of appeal is fully covered by the Judge’s charge, and is, therefore, dismissed.

12 Sixth. The thirteenth ground of appeal seeks to impute error to the Circuit Judge by his refusal to make the charge as requested. In effect, it states that if the jury conclude that John M. Graham did have an insurable interest in the property covered by the policy, and that the defendant wrote its policy notwithstanding its knowledge of this fact,'that neither Graham nor Tilton can recover unless the jury believes that the destruction of such property caused John M. Graham pecuniary loss; and if the jury believe that John M. Graham lost no salary by reason of the destruction of the business by fire, and that said mill is still operated by Graham under his contract with Tilton, neither Tilton nor Graham can recover under the policy. The Judge acted very wisely in refusing to make''this charge, for it did not cover the issues raised in this action. If Graham had insurable interest in this property, and he obtained a policy of insurance thereon by which all loss was to be paid tp Tilton, its owner, what difference did it make to this company that Tilton provided a new stock for the hosiery mill, whereby Graham was enabled to still' earn his salary? Besides, as we remarked before, a Judge' can only fairly and justly be expected to make his responses to requests to charge where the same practically affect the issues which are on trial in the action. This ground of appeal is dismissed.

13 Seventh. The fourteenth ground of appeal complained of the refusal of the Circuit Judge to charge as requested by the defendant as set out in this ground of appeal: “If the jury believe from the evidence that the defendant or its agents had knowledge, previous to the delivery of the policy, to the effect that there was no mortgage on the property, and that the loss payable clause was inserted for the purpose of permitting Tilton to control the insurance money, that such information was not knowledge of the ownership of Tilton, and the defendant would not be estopped from setting up the defense that plaintiff, Graham, had not truly stated his interest in the policy, or was not the sole and unconditional owner thereof.” We think the Circuit Judge in his general charge covered this point. He explained what was actual notice and what was constructive notice, and he was careful to explain to the jury the issues as raised by the pleadings, but was equally as careful to refrain from weighing testimony for them. A Circuit Judge must’ necessarily observe great care that in his charge, whether on requests or not, he does not narrow the inquiry into the facts by the jury. There'was direct testimony before the jury that the agent of the defendant had both actual and constructive knowledge of the ownership of Tilton of this property. The Circuit Judge very wisely declined, by refusing this charge, to appear to pass upon the facts by saying what would be the effect of all the testimony upon the fact of knowledge, or of all the testimony added to a constructive notice as to this knowledge of ownership. All ■ that litigants can demand is that the Circuit Judge shall faithfully expound the law of the case, and if in his general charge, which in effect covers specific requests, he can better do this than in a direct answer to a specific request, it is not error. This ground of appeal is dismissed.-

Lastly. The fifteenth ground of appeal will be considered. So far as this ground of appeal is concerned, we feel that the appellant has overlooked the restrictive words in the Judge’s charge touching the effect given, or to be given, Mr. Swaffield’s statement to Mr. Fripp. In our notice of this matter in a previous part of this opinion, we have taken consideration of it, quoting the Judge’s charge on the point. We do not think in the light of that quotation from the Judge’s charge there is any practical question left open. This ground of appeal is dismissed.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.

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Dissenting Opinion

' Mr. Chief Justice McIver,

dissenting. I dissent; but as I am unwilling to delay the filing of this opinion by taking the time necessary to write out my views, I must content myself with simply indicating the points upon which I differ from the majority of the Court, viz: 1st, as to the construction and effect given to that clause in the ■policy providing that the same shall be void if the assured was not the sole and unconditional owner of the property insured. 2d, as to the views presented as to the competency of the testimony as to what the clerk, Fripp, was told ih regard to the interest of Tilton in the property insured. 3d, as to the views presented in regard to the question of estoppel. 4th, as to the views presented in regard to Graham’s insurable interest in the property insured.

Case Details

Case Name: Graham v. Fire Insurance

Court Name: Supreme Court of South Carolina

Date Published: Jan 8, 1897

Citation: 48 S.C. 195

Court Abbreviation: S.C.