Pelzer Manufacturing Co. v. Sun Fire Office

36 S.C. 213 | S.C. | 1892

The opinion of the court was delivered by

Mr. Chief Justice McIver.

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 removed into said Circuit Court of the United States, in and for the District of South Carolina.”

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 has been stated, “for an order removing,” &c., omitting the words, “consolidating said actions and.” The motions in these last named cases having been also refused, the defendants therein likewise answered under protest, and the trials proceeded also under protest, and having resulted in judgments for the plaintiffs, these defendants also appeal upon the same grounds, amongst others, stated above.

1 Before proceeding to make any statement of the facts applicable, in common, to all of the cases mentioned in the title, or of the several questions on the merits presented by this appeal, it seem: proper, first, to dispose of the jurisdictional question growing out of the application for removal of certain of the cases. As to the difference in the phraseology of the notice of motion mentioned above, upon which a point was made in the argument here, we do not think it amounts to anything. The petition for consolidation and removal of the two cases against the Hibernia Company plainly shows that its purpose was to obtain an order for consolidation as well as removal, and the exceptions to the order refusing the motion conclusively show that an order for consolidation was asked for. It does not' seem to us, therefore, that the omission in the notice of motion above indicated is sufficient to differentiate the Hibernia Company cases from the others, but that, practically, they all stand upon precisely the same footing, so far as this matter is concerned. We will, therefore, as a matter of convenience apply our remarks to the application for consolidation and removal of the two cases against the Hibernia Insurance Company, and the conclusion reached will be decisive of the question in the other cases.

2 It is conceded that an application for removal of the second case against that company, numbered 4 in the title, would necessarily fail because of the admitted fact appearing on the record, that the amount involved in that case is insufficient to warrant its removal to the Federal court. We think it equally clear that the first case against this company, numbered 3 in the title, could not be removed under the proceedings instituted, for while the amount involved in that case was sufficient, and diverse citizenship of the parties was admitted, yet there was really no application for the removal of that case. There was but one petition and one bond filed in the two cases jointly, and for aught that appears the party defendant did not desire the removal of one of the cases without the other. The petition shows on its face that the application for removal of the two cases was based, and necessarily based, upon a condition precedent, to wit, the consolidation of the two cases, for until that was done, the cases could not be removed to the Federal court; No. 3 could not, because there was no application to remove that case alone,, but only in connection with No. 4, which, as we have said, could not be removed because the amount sued for in that case was insufficient. The defendant, by its proceeding, elected that the two eases should stand or fall together, and to this end consolidation was an essential prerequisite-. We do not rest our conclusion in this respect solely upon the fact that the petition and bond were entitled in the two cases, but upon the fact that the two are combined in the body of the petition as well as in the prayer thereof, and also in the notice of "motion. The court could not know,' therefore, from anything appearing on .the record, that the defendant desired that one of the cases should be removed without the other, and, on the contrary, were bound to assume, from what did appear upon the record, that the application was for the removal of the two cases after they had been consolidated.

3 It is necessary, therefore, to inquire whether there was any error in refusing the motion to consolidate. It has long been settled, in this State at least, that a motion to consolidate is addressed to the discretion of the court; not, of course, an arbitrary or a capricious discretion, but a legal discretion, to be exercised in view of all the surrounding facts and circumstances. Treasurers v. Bates, 2 Bail., 380; Worthy v. Chalk, 10 Rich., 142. It seems also to have been settled, that where the consolidation will have the effect of ousting the jurisdiction in which the several cases were brought, it will not be granted. Bank v. Cowing, 2 Nott & McC., 439, where the motion to consolidate was refused, because, if granted, it would oust the jurisdiction of the City Court of Charleston, limited to an amount less than the aggregate amount sued for in the several cases; Parrott v. Green, 1 McCord, 531, and Gaffney v. Branham, 4 McCord, 125, where it was held that a motion to consolidate should not be granted where the effect would be to oust the summary process jurisdiction. These two cases last cited must be regarded as overruling the old case of Phillips v. DeLane, 2 Brev., 429, where a contrary view seems to have been taken. Under these rules it is clear that there was no error on the part of Judge Fraser in refusing the motion to consolidate.

4 There is also another reason why the motion to consolidate should have been refused. The rule, as we understand it, is, that upon the filing of the required petition and bond in a case which may be removed under the provisions of the act of Congress, the State court at once loses its jurisdiction, and has no authority to proceed further. To use the language of the Supreme Court of the United States, in one of its latest utterances, in the case of Marshall v. Holmes, 141 U. S., at page 595: “If, under the act of Congress, the cause was removable, then, upon the filing of the above petition and bond, it was in law removed so as to be docketed in that court (Circuit Court of the U. S.), notwithstanding the order of the State court refusing to recognize the right of removal.” If this be so, then it follows that Judge Fraser had r.o jurisdiction to grant the motion to consolidate, or to take any other step in the cause, so soon as the petition and bond were filed, provided the case was, as appellant claims, removable. Indeed, under the rule as above stated, we see no necessity for, or propriety in, the State court granting an order for the removal of a cause, properly removable to the Federal court; for if the State court loses its jurisdiction immediately upon the filing of the petition and bond, its order granting a removal would be nugatory. If, however, the State court is of opinion that the cause is not properly removable under the provisions of the act of Congress, it simply disregards the petition and proceeds with the cause, and if, when final judgment is reached, it proves to be adverse to the party applying for removal, he may, we suppose, have the question as to whether the cause was properly removable, reviewed by the Supreme Court of the United States. We are, therefore, of opinion that so much of the appeals in the eight cases last mentioned in the title, as relate to the refusal of the motions to consolidate and remove, must be dismissed.

5 In.the cases numbered 1 and 2 in the title, a question is raised which is not presented in any of the other cases, and will, therefore, next be disposed of. It seems that in the complaints in these two cases, the plaintiff asked reformation of the policies of insurance sued upon so as to conform to what was alleged to be the real intention of the parties; and at the outset of the trial, defendants asked that the equitable issue raised by the application for reformation be first disposed of, which motion was refused; and this is the basis of the first ground of appeal in those cases. Inasmuch, however, as the Circuit Judge, in the outset of his charge to the jury, announced his conclusion that the policies as written were sufficient to cover the losses claimed, and therefore there was no necessity for any reformation, it seems to us that the first ground of appeal loses its practical importance and may be dismissed from further consideration.

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, have the right to enforce any cause of action which the insured may have against any person by whose act or omission such loss may be occasioned, while in the other five cases the policies contain no such express stipulation.

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.

6 The first point which we will now consider alleges error in the rulings, upon the questions of evidence, in the following particulars : (a) In admitting in evidence the letters of E. A. Smythe, as president of plaintiff company, and the replies thereto. It seems that after the fire occurred, the president of plaintiff company, understanding that the insurance company refused to pay because they were deprived of the right of subrogation by reason of the clause in the lease above referred to, exempting the railroad company from liability to Cely & Bro., addressed a letter to the insurance company, offering to assign any right of action the plaintiff might have against the railroad company to the insurance company upon the payment by it of the amount due on the policy ; and this is the letter which was received in evidence against the objection of defendant’s counsel,' -as well as the reply of the insurance company referring plaintiff to defendant’s counsel. The objection, as we understand it, is based upon two grounds — first, that it was an offer of compromise, and, second, that it was irrelevant. We do not see that it was 7 any offer of compromise, and it certainly was not irrelevant, for in the complaint there was a distinct allegation that the offer had been made, and this allegation was denied by the answer, and thus an issue was raised upon which the plaintiff had a right to offer evidence. If it was irrelevant, then the proper course for defendant to pursue would have been to move to strike out such allegation, and not to object to evidence tending to establish an allegation which he had seen fit to deny.

8 (b) In admitting in evidence the declarations of John Ferguson made after the fire, as well as the declarations of Murray. Inasmuch as these declarations related solely to the question.of the reformation of the policies sued upon in cases numbered 1 and 2, which had been eliminated from the case by the decision of the Circuit Judge that it was not necessary, it is not necessary to consider the competency of such testimony.

9 (e) In admitting the testimony of Bollin and others as to the conduct of other insurance companies after the fire, in taking risks upon cotton stored in the new warehouse erected at the same place where the one which had been destroyed by fire had stood. It will be observed that this testimony thus objected to was offered in reply, after the defendant had been permitted to offer testimony, tending to show that the right of subrogation was regarded as so material by reputable insurance companies, as that some of them would refuse to take risks where that right was barred or released, and others would only take such risks at a higher rate of premium. It was therefore clearly competent for the plaintiff to show in reply that reputable insurance companies did take risks, with a knowledge of the clause in the lease releasing the right of subrogation upon cotton stored in the warehouse located on land covered by the lease and instead of charging a higher rate of premium, actually charged less; which reduction, however, was doubtless due to the change in the construction of the new warehouse.

10 (d) In allowing plaintiff to prove, by general reputation, the nature of the business of Cely & Bro., for the purpose of charging defendant with knowledge thereof. As to this specification, we would remark, first, that it does not clearly appear that any such evidence was admitted. On the contrary, it does appear in the record of the case against the Sun Fire Office of London, that when such evidence was offered, it was objected to and the objection was sustained. But waiving this, it seems to us that after the nature of the business in which these parties were engaged had been made to appear by the direct testimony of their book-keeper, as well as by the testimony of one of the partners, the fact that it was generally known in the community was a circumstance tending to show that it was known to insurance agents doing business in that community* and was therefore competent.

11 (e) In refusing to allow the depositions of Mims and others, taken by a notary public in Atlanta, Georgia, read in evidence. This specification applies only to the two cases first named in the title of this appeal. This testimony purports to have been taken under the provisions of the act of 1883'. 18 Stat., 373. The sealed envelope in which the testimony was enclosed, was endorsed “The Pelzer Manufacturing Company it-. The Southern Insurance Company of New Orleans and others— 10 cases.” There was therefore nothing which would indicate that the testimony enclosed was taken in the two cases then under trial, and hence there was no error in refusing to allow it read in those two cases.

12 (f) In admitting the oral testimony of Goodlett and others as to the ownership of the land on which the warehouse stood. In regard to this specification, we have to remark, first, that as the defendant first inquired of its witness as to the ownership of the land and the warehouse, the way was .thereby opened for the plaintiff to pursue the inquiry by similar questions to its witnesses. But in addition to this, we think the testimony was competent anyhow. The question of title was not 'really involved in the issue, but was simply a collateral matter, to which the strict rule as to the mode of proving title to real estate was not applicable. In such a case, ownership, or rather, reputed ownership, may be proved by parol. 1 Greenleaf on Evidence, section 101.

13 (g) In admitting oral, testimony, in the cases against the Hibernia Insurance Company, that “proofs of loss” had been made out and delivered to the insurance company or its agent. It seems that there was a clause in the policies issued by this company, providing that the amount of loss or damage having been determined in the mode prescribed, the sum for which the company may be liable “shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss having been received by this company in accordance with the terms of this policy.” And another clause provides that such proof of loss shall be made in writing, specifying various particulars, which need not be mentioned here. The thing tobe proved, therefore, was not what was contained in the written proofs of loss, but the fact that such written proofs had been furnished to the company within the prescribed time, and we do not see why this substantive fact may not have been proved by oral evidence. Especially is this so, when the evidence objected to tends to show that the proofs of loss were made out in writing by the agent of the insurance company, signed by the insured, and left with the company. See Bish v. Hawkeye Insurance Company, 69 Iowa, 184. But in addition to this, it is well settled that, in the absence of any allegation or evidence of any deficiency in the “proofs of loss,” and where the insurance company claims that the policy is forfeited or rendered void upon other grounds, that amounts to a waiver of the requirement of the preliminary proofs of loss. See Dial v. Life Association, 29 S. C., 579, and the cases there cited.

14 We come next to the consideration of the several exceptions to the charge, or rather charges, of the two Circuit Judges — the first two cases having beenv heard before his honor, Judge Al-drich, and all the others before his honor, Judge Wallace. First, as to the question which arises only in the cases numbered 1 and 2, whether there was error in construing the terms of the policies as sufficient, without reformation, to cover the entire value of the cotton destroyed, or rather to the extent of the amounts named in the policies. It appears that the Southeastern Tariff Association, of which' these two companies seem to have been members, had prescribed a form of policy to be used where insurance was effected by a warehouseman on cotton or other property stored in his warehouse, different from that used in these two eases, which difference is indicated in our preliminary statement of facts. That association, however, while no doubt entitled to high consideration, has no power to enact any law, or prescribe what shall or shall not constitute a contract ber tween parties. These companies did enter into contracts of insurance with Cely & Bro., and the proper construction of such contracts must be determined by the court from the terms of the papers evidencing such contracts, read in the light of surrounding circumstances. .

15 One of these circumstances, which seems from the evidence to have been generally known in the community, and known to the agents through whom the insuarance was effected, was that Cely & Bro. were general warehousemen, engaged in the business of buying and storing cotton for others, and amongst others the plaintiff company. There is also evidence that there was a special agreement between Cely & Bro. and the plaintiff, whereby the former was bound to insure the cotton bought by them for the latter, and that they did so insure said .cotton. The words of the policies in these two were, as we have seen, “on cotton in bales stored in their warehouse,” &c., and the question is, whether those words were properly construed by the Circuit Judge. It is conceded, as we understand it, and at all events it is well settled, that a warehouseman has an insurable interest in property stored in his warehouse, to indemnify himself against any liability which he may incur to his patrons by reason of his relation to them as wareheuseman; and if he, by special contract with any one of his patrons, assumes a more extended liability than that incident to his employment as warehouseman, we see no reason why he may not indemnify himself against such extended liability by taking out insurance upon the property for which he has assumed such liability. Indeed, Cely & Bro., by •their special agreement with plaintiff, had become insurers of the cotton, and when they took out the policies in question here, they practically effected re-insurance thereon, a thing which is not unfrequently done, as we understand, by regular insurance companies. 14 As has been said frequently in the course of the argument of these cases, there is no magic in a contract of insurance, but it must be judged of and construed like all other contracts between man and man. The inquiry is, what was the intention of the parties, as evidenced by the terms of the contract; and to that inquiry we think the Circuit Judge, who heard these two cases, has given the correct answer.

16 We propose next to consider the matter of subrogation, and first, we would remark that the fact that in some of these policies the right of subrogation was provided for in express terms, while in others no such express provision is to be found in the policies, cannot, in our judgment, make any real difference. For the right of subrogation rests upon well settled general principles, and need not therefore be the subject of special contract. It seems to us that in all these, cases, either with or without the special subrogation clause, the insurance companies would, upon the payment of the amounts found to be due upon their respective policies to the insured, have the right to be subrogated to all the rights which the insured had at.the time the contract of insurance was entered into, . against any person or persons through whose agency the ]oss was occasioned. But we do not understand that this right of subrogation would extend to any right of action, or any indemnity which the insured may have once had, but had released before the contract of insurance ivas entered into.

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 of insurance were entered into, surrendered or released such right of action against the railroad company, by the provision in the lease to that effect, the insurance companies could not claim a right to be subrogated to such surrendered or released right, for the simple reason that no such right existed at the time the contracts of insurance, which would otherwise give rise to the right of subrogation, were entered into. It seems to us, therefore, that the only application which this matter of subrogation has to these cases, is in relation to the questions raised as to the forfeiture of the policies by the alleged omissions to state, or the concealment or misrepresentation of, facts material to the risk, which will next be considered.

17 It will be observed that the policies sued on in all these cases contain a provision that the failure to make known any fact material to the risk will render the policies void. In some of them the provision is that the omission to state any material fact shall avoid the policy, while in others the language is stronger — “concealed or misrepresented any material fact” — which would seem to imply an intentional withholding of such fact; but so far as the questions presented in these cases are concerned, we think it may be assumed without prejudice (certainly to the appellants), that the provision in all of the policies is expressed in the milder form of a mere omission to state any material fact. In considering this branch of these cases, we must keep in mind the fact that all of the policies were issued upon verbal applications, and that no questions were asked and no representations ) made except as to the amount of insurance wanted, the property to be insured (cotton), and its location at the time. We must also bear in min'd that all of the insurance agents through whom these policies were obtained resided in Greenville, and at least some of them, if not all, were familiar with the locality of the warehouse, and had been in the habit for several years of taking risks on cotton stored in that warehouse for Cely & Bro.

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 them for any loss incurred by reason of fire communicated from the locomotive engines, and had thereby deprived the insurance company of the right of subrogation, which they otherwise would have had; and that Cely & Bro. had failed to communicate the fact that they were not the absolute and unconditional owners of the cotton insured. The law upon the subject of the effect of such omissions has been most elaborately and ably argued by the counsel on both sides, and while we have derived much pleasure and profit from the consideration of their arguments, as well as the numerous authorities cited, yet we must think that the whole matter lies in a very narrow compass, and is to be determined more by reason and common sense, and the indisputable principles of right and wrong, than by elaborate citations of authority. When Cely & Bro. applied for insurance on this cotton, they were bound, even in the absence of any special stipulation in the policies which were subsequently delivered, not to withhold any fact which they knew, or had reason to believe, would be likely to influence the insurance companies either in fixing the rate of premium or in rejecting the risk altogether; and this is what the jury were instructed would constitute a material fact. The jury having thus been properly instructed as to what’would constitute a material fact, it was then their province to determine whether a given fact was material (Hume v. Insurance Company, 23 S. C., 202), and also whether it was known, or ought to have been known, to the applicant for insurance at the time to be material.

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 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 such facts as are not stated as material. As was said in Clark v. Manufacturers' Company, 8 How., at page 249: “If the insurer asks no information, and the insured makes no representations, * * * it must be presumed that the insurer has in person or by agent, in such a case, obtained all the information desired as to the premises insured, or ventures to take the risk without-it, and that the insured, being asked nothing, has a right to presume that nothing on the risk is desired from him.” And again : “When representations are not asked or given, and with only this general knowledge the insurer chooses to assume the risk, he must, in point of law, be deemed to do it at his peril,” citing with approval the remarks of Lord Mansfield to same effect in the leading case of Carter v. Boehm, 3 Burr., 1905, reported also in 1 Smith Lead. Cas., 270.

18 The next point which will be considered is whether there was error in refusing the request to charge, as follows: “The local agent cannot, without special authority, waive said condition, nor is it waived by his knowledge of the contract relieving the railroad company.” In considering this point, as well as all the others based upon refusal of the requests to charge, we must keep in mind the well settled rule, that the refusal of a request to charge an abstract principle of law, even though it be correct, unless it appears applicable to the case as made by the testimony, affords no ground for a new trial. What was the scope of the agency of the several agents from whom these policies were obtained does not appear in the testimony, and, therefore, we do not think that the question sought to be raised by this request to charge is properly before us. But even if it were, we think that the principles laid down in Insurance Company v. Wilkinson, 13 Wall., 222, and Insurance Company v. Mahone, 21 Id., 152, even as qualified by the subsequent case of New York Life Insurance Company v. Fletcher, 117 U. S. Rep., 531, would have justified the refusal of the request, under the testimony, as to the scope of the agency in these cases; for in the case last cited, it appeared not only that the authority of the agent was limited, but also that such limitation was made known to the insured by being embodied in the application which the insured had signed.

19 We come next to the question whether the record of the lease constituted constructive notice of its contents. This question arises only in the two cases against The Hibernia Insur-anee Company, as in the other cases the jury were instructed in accordance with the request. In the first place, we think it very obvious that this instruction — that the record did constitute notice — could not possibly have affected the verdict, for the reason that on the day after these cases were tried, the remaining cases, numbered 5, 6, 7, 8, 9, and 10, were submitted to the same jury upon the same evidence substantially, at least so far as this matter was concerned, but with instructions that the record of the lease did not constitute notice, and yet the verdicts in these last cases were also in favor of the plaintiff, showing conclusively that the jury were not influenced by the instruction in the Hibernia cases that the record did constitute notice. So that even if this instruction, thus proved to be immaterial, was erroneously refused, it would constitute no ground for a new trial.

20 But was the request erroneously refused ? The request was couched in the following language: “That the recording of the lease from the Columbia and Greenville Railroad Company to Cely & Bro. did not constitute notice to the insurance companies of the contents of the lease, and unless the jury find that the insurance company had actual notice of the contents of the lease when the policies were issued, they cannot be held to have known of the existence of the same, or of its contents.” It will thus be seen that this request, embodied in a single sentence, involved two propositions — first, that the record did not constitute notice, and, second, that “actual notice of the contents of the lease” was necessary to affect the insurance company with notice. Now, under the well settled rule, unless both of these propositions were correct, there was no error in the refusal, as it is not the duty of the Circuit Judge to disconnect several propositions embodied in a single request, and sustain such as are sound and reject those that are unsound. Gunter v. Graniteville Manufacturing Company, 15 S. C., 454; Columbia Insurance Company v. Lowrance, 2 Peters, 25; Indianapolis &c. R. R. Co. v. Horst, 93 U. S., 291. Now, even conceding the first proposition was correct, it is quite clear that the second was not; for if so, then a person who knows of the existence of a deed, lease, or other like paper, could always escape the effect of notice by refusing to read the deed or hear what was in it, and thus be enabled to say that he had no knowledge of its contents. The request, therefore, went too far, and under the rule above stated was properly refused.

21 The point made, that the verdict and judgment in each of the cases was in excess of the amount secured by the respective policies, cannot be sustained. This point, as it seems to us, raises only questions of fact, of which this court cannot take cognizance. There was evidence tending to show that the amount of the loss exceeded the aggregate sum of all of the policies, and if this evidence was satisfactory to the jury, then the plaintiff unquestionably had the right to recover the total amount of the risk assumed by each of the companies, with interest thereon from the time the' same became payable under the terms of the policies.

22 It seems to us that these views cover all the points raised by the several exceptions in the several cases, except that numbered 10, and need not, therefore, be considered in detail. It only remains to consider so much of the exceptions as may be peculiar to case No. 10, in which the insurance was upon the warehouse and not upon the cotton. We think, however, that the points raised in this case are also substantially covered by what we have said. The point peculiar to this case is, that inasmuch as the policy contained a provision, that “if the building named stands on leased ground, it must be so represented to the company and expressed in the policy in writing, otherwise the insurance as to such property shall be void,” the Circuit Judge erred in refusing to charge, that if the warehouse stood upon leased ground, and that fact was not stated in writing in the policy, then the plaintiff cannot recover. In the first place, an examination of the charge will show that while the judge did refuse the request in the form in which it was presented, yet he did, in substance, instruct the jury in accordance with that request.

But in any event, the request in its unqualified form was properly refused, as is shown by the case of Philadelphia Tool Company v. British America Assurance Company, 19 Am. St. Rep., 596 (132 Penn. St., 236), which, in principle, is not distinguishable from this case. As was said in Menk v. Home Insurance Company, 9 Am. St. Rep., 160 (76 Cal., 51): “The tendency of the decisions is plainly to hold all those 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.” • In this ease there was no doubt of the fact, that the building stood upon leased ground, and there was evidence tending to show that the insurance agents knew that fact, and, if so, then as a strict enforcement of the condition of the policy above quoted would have rendered it voi'd as soon as issued, that would place the insurance company in the .attitude of receiving money through its agent for which it had not made, and did not intend to make, any return ; and this, as both reason and authority say, would be a fraud. There was no error, therefore, in refusing the request in its unqualified form.

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.

Case Details

Case Name: Pelzer Manufacturing Co. v. Sun Fire Office

Court Name: Supreme Court of South Carolina

Date Published: Apr 21, 1892

Citation: 36 S.C. 213

Court Abbreviation: S.C.