Mars v. Virginia Home Insurance

17 S.C. 514 | S.C. | 1882

The opinion of the Court was delivered by

Mr. Chief Justice Simpson.

This action is against the ■defendant, a corporation under the laws of Virginia, upon a policy which covered a house and a stock of merchandise of plaintiff, located in Abbeville County, afterwards consumed by ■fire. Among other defences, the answer set up the fact that ■the defendant had been garnisheed in the State of Virginia, under attachment proceedings, by a creditor of the plaintiff, a •citizen of Charleston, to the amount of $340, and that this proceeding was pending in Virginia. To sustain this defence, the defendant offered as evidence a certified copy of the proceedings in the Circuit Court of the City of Eichmond, a court of record, to which plaintiff had been made a party. This evidence was ruled out by the presiding judge.

In the course of the trial, the declarations of W. T. Branch, a local agent of the defendant, made after the fire, to the effect that the company would pay for the loss, were received in behalf of the plaintiff against the objections of the defendant. There were other objections not necessary now to mention. The verdict was for the plaintiff for $2265.37.

We think there was error in the rulings of the Circuit Judge upon the two matters above referred to. Mr. Drake says- “ That the operation of an attachment against a garnishee is compulsory. He has no choice but to pay obedience to the judgment of the court to whose jurisdiction he has been subjected, and the exercise of that jurisdiction effects a confiscation, for the plaintiff’s benefit, of the debt due from the garnishee to the defendant. In this proceeding it is an invariable rule that the garnishee shall not be prejudiced, or placed in anj' worse situation than he would have been in if he had not been subjected to garnishment. That is, if obliged, as garnishee, to pay to the plaintiff the debt he owed to the defendant, he shall not be compelled again to pay the same debt to-the defendant. When, therefore, he is sued for that debt either before or after he has been summoned as garnishee, ho must be allowed to show that he has been, or is about to be, made liable to pay, or has paid, the debt under an attachment against the defendant in which he has been charged as garnishee.” Drake, § 700.

He then proceeds to show to what extent this defence will avail the defendant, and how he may take advantage of it both when the garnishment is prior to or pending the suit brought, by the defendant in the attachment against the garnishee for the debt, and also after judgment rendered against the garnishee. The substance of which is, that while the garnishment is pending, it will operate at least as a “continuance, or suspension of the action, or if judgment be rendered, a stay of execution, which can be removed afterwards, or made perpetual in whole or in part, as the exigency of the case may require. Where the action is brought after judgment rendered against a garnishee, the Court pronouncing the judgment having jurisdiction of the action and of the person of the garnishee, such judgment is conclusive against parties and privies, and constitutes a complete defence to any subsequent action by the defendant against the garnishee, for the amount which the latter was compelled to pay, and this, though the Court be a foreign tribunal.” Drdlse, § 100 et seq., and numerous cases referred to in the notes. Campbell v. Home Insurance Co., 1 S. C. 158.

These principles are founded in good sense, and have been adopted in many of our sister States in the administration of their attachment laws, and we think they should have been applied and enforced here. The defendant proposed to prove by a certified copy of the proceeding in a court of record of the State of Virginia the pendency of the garnishment against them in that State. What effect this testimony would have had, whether causing a continuance, or judgment with a stay of execution, or whether the court in Virginia had acquired jurisdiction,we cannot now say. All this would have been for the Circuit Judge to consider, at his sound discretion. But we think the testimony was competent, and should have been received.

Next, as to the declarations of Branch. Branch, it seems, was a local agent of the defendant. His declarations were admitted, we suppose, upon the ground, that being agent, they were in law the admissions of his principal. The correctness of this ruling must depend upon the fact whether the admissions were in reference to a matter within the scope of his agency. It is well established that an agent can bind his principal within the limit of his agency as fully as the principal could himself, and no doubt the declarations and admissions of the agent within that limit would also be binding. But the agent is powerless outside of his agency. He is as complete a stranger as any one else, as to all matters except such as have been entrusted to his care and authority.

Now, was Branch an agent entrusted with such full powers as to be authorized to admit the liability of the defendant for the losses incurred by the plaintiff in advance of any action by the defendant itself? There was no testimony before the Court, as appears from the brief, as to the character of Branch’s agency. It is simply stated that he was the local agent of the defendant. Where the declarations of an agent are offered and objected to, the first step required to make them competent is to prove the agency, and to show that in its legitimate scope it embraces the very matter about which the agent proposes to speak.

No one can be presumed to be the agent of another in the absence of all testimony. Nor can the limit of an agency be determined without some evidence as to the subject-matter over which the agent has charge. It is the duty of a party relying upon declarations and admissions of an agent to furnish this information to the Court before asking that they shall be heard. We do not think that the declarations of Branch were competent in reference to all matters of interest to the defendant simply because it was understood that he was the local agent of the company.

The policy stipulated that payment for losses should be made sixty days after proofs required by the company “ shall have been received at the office of the compamy in Richmond Va., and the loss shall have been satisfactorily ascertained and proved,” as required by its terms. There is nothing in the policy charging Branch with the duty of ascertaining and determining when the company should be liable. It does speak of cértain facts which must be furnished to the company, or its adjusting agent, but it does not appear what the powers of an adjusting agent were, nor whether Mr. Branch occupied that position. Mr. Branch may have been simply an agent to insure and to pay in case of loss. This would not necessarily carry the power to admit liability. He is incidentally referred to by some of the witnesses as an adjusting agent, but the testimony on the subject does not seem to have been direct and express, and besides is quite meagre. These declarations were not admissible on the ground that they were part of the res gestee. Patterson v. Railroad Co., 4 S. C. 154; Aiken v. Telegraph Co., 5 S. C. 369.

We see no error in the exclusion of the declarations of J. E. Caldwell. He was no party to the action, nor had he any interest therein. He was a competent witness, and might have been put upon the stand to prove the facts referred to in his proposed declarations. The admissions of the declarations of this party would have been in direct conflict with the rule in reference to hearsay, and they constituted no part of the res gestee. See the cases supra.

Nor do we think that the rulings of the Circuit Judge as to the question of fraud were erroneous. If fraud was involved in the case at all, it constituted a matter of defence and was no part of the cause of action.

The error assigned as to the sixty days involved a question of fact, and it does not appear that the finding of the jury on that subject is without testimony.

It is the judgment of this Court that the judgment of the Circuit Court be reversed on the two first grounds mentioned above, and that the case be remanded for a new trial.