36 S.C. 213 | S.C. | 1892
The opinion of the court was delivered by
The ten cases above stated, which, for convenience of reference; we have numbered from one to ten consecutively, were heard and will be considered together, as the most material questions are common to them all, though there are questions peculiar to some which do not arise in ail of the cases, which will be noted and considered in the progress of this opinion. They were all actions brought by the plaintiff on policies of insurance, issued by the defendant companies respectively, to recover damages incurred from the destruction by fire of certain cotton alleged to be the property of the plaintiff, except that in No. 10 the policy was issued upon the warehouse in which said cotton was stored, and not upon the cotton itself.
In all of these cases, except those numbered one and two, applications were made to the Court of Common Pleas by the appellants before answers filed for the removal of said cases to the Circuit Court of the United States upon the ground of the diverse citizenship of the parties. Inasmuch as the amounts sued for in the cases numbered 4, 6, 7, 8, and 10 did not exceed the sum of two thousand dollars, and were, therefore, below the jurisdictional limit, it was very clear that they could not be removed, and hence the defendants, with a view to meet this difficulty, sought to have the two actions against the same defendant consolidated. Accordingly, a petition entitled in both of the cases against The Hibernia Insurance Company was filed, in which, amongst other things, it was stated that the causes of action in each of the two cases were of the same nature, between the same parties, and that the same can be united in one complaint; and after stating the diverse citizenship of the parties, and offering the requisite bond, as provided for by the act of Congress in this behalf, the prayer was “that said two suits be consolidated into one by this court, and that this court do proceed no further except to make an order of removal and to accept said bond, and cause the records to be re
Upon the filing of this petition with the accompanying bond in the office of the clerk of Court of Common Pleas for Greenville County, where these actions had been commenced, the defendant company gave notice of a motion “for an order removing the above entitled causes to the Circuit Court of the United States for the proper District, and for such other and further relief as may be proper.” This motion came on to be heard by his honor,. Judge Fraser, who, in a short order, without assigning any reasons, dismissed the motion, whereupon defendant excepted upon the following grounds: “L That his honor erred in holding that the above entitled causes could not be consolidated and removed. II. That his honor erred in holding that the defendant, having moved to consolidate, had thereby lost the right to remove either of the above entitled causes to the United States Court. III. That his honor erred in requiring the defendant to answer both complaints or submit to judgment in this court, the defendant having fully complied with the provisions of law for the removal of causes from this court to the United States Court.”
The motion to consolidate and remove having been refused, the defendant filed separate answers in each of the cases under protest, and the trial proceeded likewise under protest from defendant, which resulting in verdicts against defendant in both of the cases, judgments were entered upon the verdicts, from which defendant appeals upon grounds, amongst others hereafter to be noticed, substantially the same as those upon which the motion to consolidate and remove was rested.
Applications of a similar character were, at the same time, made for consolidation and removal of the two cases against The Ham-. burg-Bremen Fire Insurance Company, The Southern Insurance Company of New Orleans, and The American Fire Insurance Company of Philadelphia, and made in precisely the same way, in every respect, except that the notice of the motion in the cases against-The Hamburg-Bremen Company, The Southern Insurance Company, and The American Company, was “for an order consolidating said actions and removing the same,” &c., while the notice of the motion in the eases against The Hibernia Company was, as
We will proceed, therefore, to consider the several questions common to all the cases, except No. 10, in which the policy was upon the warehouse and not upon the cotton, in which the question peculiar to that case will be subsequently considered.
It will be necessary first to make some general statement of the facts out of which the questions now to be considered arose. It appears that Cely & Bro. were cotton buyers and general ware-housemen, doing business in the city of Greenville; that under an agreement with the plaintiff, they bought a large amount of cotton for plaintiff, which they stored in their warehouse located near the track of the Columbia and Greenville Railroad Company and within the limits of its right of way, which said Cely & Bro., by the terms of said agreement, undertook to store and insure for a stipulated rate of compensation, and that to indemnify themselves they took out the several policies of insurance sued on in these cases; that after said cotton was destroyed by fire, which seems to have originated from sparks from the passing engines of said railroad company, the said policies of insurance were assigned to plaintiff by Cely & Bro., and these actions were instituted by plaintiff as assignee upon the said policies against the several defendant companies. The policies in five of the cases contain what is known as a subrogation clause, whereby the insured stipulate that the insurer shall, upon payment of any loss,
It further appeared that the warehouse, in which the cotton ■was stored at the time it was destroyed by fire, stood upon land leased by Cely & Bro. from the railroad company several years before, which lease had been duly recorded, and contained a provision that the railroad company should not be liable for any loss occasioned by fire communicated from the locomotive engines of the railroad company, but that such loss should fall upon Cely & Bro. The policies also contain the usual provision, that unless otherwise provided by agreement endorsed thereon, the same shall be void if the interest of the insured be other than unconditional and sole ownership in the property insured; as well as the ¡usual clause providing, in some of the policies, that any omission •to state, and in others any concealment or misrepresentation of, any fact material to the risk, shall render the policy void. . In cases numbered 1 and 2 in the title of this appeal, the policies ■purport to insure Cely & Bro. “on cotton in bales stored in their warehouse, West Greenville, S. C., subject to average clause,” &c.; while in the other cases the language is “on cotton in bales, their own or held by them in trust, or on commission, contained in their warehouse,” &c.
The grounds of appeal are very numerous, and we cannot undertake to set them out here, or consider them in detail, though they, together with the charges of the Circuit Judges, before whom -the cases were tried, should be incorporated in the report of these cases. We prefer to take up the points made by the counsel for appellants in their argument here.
To apply our remarks to these cases: If Cely & Bro. once had, as they undoubtedly did have, a right of action against the railroad company to recover damages for the destruction of the cotton by fire originating from sparks communicated by the locomotive engines of the railroad company, and had, in the lease executed in December, 1882, about six years before these contracts
The appellants claim that the several policies were rendered void by the omission on the part of Cely & Bro. to make known the fact, that by one of the provisions of their lease from the railroad company, they had released such company from liability to
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 risk 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
In conclusion, we think it proper to say, in order to prevent any supposition that we have overlooked any of the numerous points raised by these appeals, that we consider such points as are not specifically reférred to as either covered by what we have said, or where they rest upon refusal of requests to charge that they were, practically, allowed by the general charge. For example, although the request to charge as to the effect of an omission to mention any unusual circumstance affecting the risk was refused, yet the same principle was embraced in the general charge, and hence there was no error in refusing such request, Gunter v. Graniteville Manufacturing Company, 18 S. C., 262.
The judgment of this court is, that the judgment of the Circuit Court, in each of the ten cases mentioned in the title of this appeal, be affirmed.