46 S.C. 372 | S.C. | 1896
Lead Opinion
The opinion of the Court was delivered by
These two cases, being of a similar character, were heard together; but, as they differ in some of their features, it seems to us best to consider them separately; and we will first consider the case of D. P. Eagrone; but the remarks we shall make in regard to the points made in that case must be regarded as applicable to similar points made in the other case.
D. P. Eagrone commenced his action against the defendants on the 1st day of September, 1894, on' a paper purporting to be a policy of insurance, a copy of which is set out in the “Case,” to recover the amount of his loss by fire in the destruction of his gin-house and machinery connected therewith. The following is a copy of so much of the policy as it is deemed necessary to set forth here: “$500.00. No. , . Policy of the Farmers’ Mutual Fire Insurance Association of South Carolina. This agreement this day entered into between D. P. Eagrone (who is called the insured) and the Farmers’ Mutual Fire Insurance Association for the county of Edgefield, whereby it is agreed,” &c. Setting forth the terms and conditions of the contract in detail, which at this point need not be stated. This paper
This action was brought against the defendants individually, and was based upon the theory that defendants held themselves out as agents of the Farmers’ Mutual Fire Insurance Association for the county of Edgefield, when, in fact, there was no such association legally established, and, therefore, the defendants, pretending to act as agents of a corporation having no legal existence as such, and no power to enter into the contract evidenced by the policy, became personally liable for the performance of such contract. The defence was so fully and fairly stated in the charge of the Circuit Judge (which will be reported) as to supersede the necessity of making any further statement.
The case came on for trial before his Honor, Judge Earle, and a jury, and when the complaint was read, the defendants demurred to the same, on the. ground that it did not state facts sufficient to constitute a cause of action, “in this, it being described in the complaint as a mutual insurance association, the plaintiff is estopped from denying the corporate existence of the association.” The demurrer was overruled, and no exception was noted to such ruling, and there is no ground of appeal imputing error in such ruling. That matter, therefore, may be dismissed from further consideration. It is stated in the “Case” that the answer was amended so as to allege that the plaintiff, having become a member of a mutual insurance association, and having recognized its existence by paying assessments and otherwise, he is estopped now from denying the corporate existence of the association. At the close of the testimony adduced in behalf of the plaintiff, defendants moved for a nonsuit, upon the ground that the plaintiff, having become a member of a mutual insurance association, is estopped from denying its corporate existence; and upon the further
The tenth and thirteenth grounds, which impute error in refusing to receive the by-laws of the Chester association in the evidence in this case, may be considered together. Inasmuch as the policy upon which this action was based contained no reference whatever to the by-laws of the Chester association, it is difficult to conceive how such by-laws would be pertinent to any issue in this case. This ground is overruled.
The sixteenth exception must be overruled. It is an entire misconception of the charge of the Circoit Judge to suppose that there was any inconsistency whatever in the charge. In the first place, in response to one of the requests submitted by the defendants, he was speaking of actual moral fraud, while in the other place he was speaking of a different and distinct class of frauds — legal or constructive fraud.
The seventeeth exception needs no special consideration, and it is very obvious from what we have already said that it cannot be sustained.
We proceed next to the consideration of the case of J. H. Eagrone, or rather to those points wherein it differs from the case of D. P. Eagrone. The main difference between
The eleventh exception is based upon the assumption that the policy was issued by a mutual insurance association, and, as we have seen, there was no such corporation as that named in the policy, this assumption is unfounded. This exception cannot, therefore, be sustained.
It will be necessary for the Reporter to include in his report the charge of the Circuit Judge, and the exceptions thereto, in this case of J. H. Ragrone, as well as the charge and the exceptions in the case of D. P. Ragrone.
The judgment of this Court is, that the judgment of the Circuit Court, in both of the cases above stated, be affirmed.
Dissenting Opinion
dissenting. In my opinion, there was testimony tending to show that the plaintiffs contracted with reference to the by-laws of the Farmers’ Mutual Insurance Association of Chester, S. C., and that his Honor, the presiding Judge, was in error in his charge to the jury upon this question. I think there should be a new trial, and, therefore, dissent from the judgment announced by the majority of the Court.