Stickley v. Mobile Insurance

37 S.C. 56 | S.C. | 1892

Lead Opinion

The opinion of the court was delivered by

Mr. Justice Pope.

This was an action tried before his honor, Judge Aldrich, and a jury, at the September, 1890, term of the Court of Common Pleas for Beaufort County, wherein a verdict was rendered for the plaintiff', and after judgment was entered thereon an appeal was taken to this court. It may be remarked, that this is an action to recover the amount of an insurance of the dwelling house and furniture, alleged to have been effected for the plaintiff by one, Colcock, as the agent of the defendant, the Mobile Insurance Company, beginning on the 14th day of June, 1888, and ending one year thereafter, for a cash premium paid by the plaintiff to said agent upon the agent’s assurance that the insurance began on that day, and that the company would forward the policy in a few days by mail. The premium paid was $15. The amount of insurance was $1,000, $600 on house and $400 on furniture. The verdict was for $908.25. No policy of insurance was ever received. ' ,

The property was destroyed on 24th May, 1889. Notice of loss was forwarded by letter from plaintiff to defendant’s general agents, at Columbia, S. C., on 28th May, 1889. On 30th May, 1889, such agents replied, merely denying knowledge of such contract, and asking for dates, amount paid, to whom, whether receipt was given for premium, and asking copy of same—whether policy was delivered, its number, with written portion of same, including date of same and expiration. It was proved that Colcock was appointed agent of the plaintiff, and authorized to take risks. This letter was replied to promptly by plaintiff, and an inventory of his loss included, which were received by the general agents at Columbia on June 5th, 1889. All such papers being forwarded to the home office, such company denied “any liability for the loss, as they never insured the risk referred to.”

The defendant requested the court to charge the jury :

Third: “The testimony is insufficient to show such an authority.” This request the judge refused to charge, upon the ground that he could not charge upon the facts. Fourth : ‘ ‘Even if the testimony is sufficient to establish such authority, the proof is insufficient to prove such parol agreement.” This the judge refused, as it would be a charge upon the facts. Sixth: “The letter of plaintiff, in evidence, dated the 28th of May, was notice of loss, and not proof thereof, which was not sent by him until the third of June.” This request was refused in these words: “The sixth request I am going to refuse. The letter I have already passed upon, and the second letter, containing the affidavit and so on, was additional proof and notice, and didn’t deprive the letter of 28th May of whatever force and effect it had.”

The defendant submits the following grounds of appeal:

1. It is respectfully submitted that his honor, the presiding judge, erredin overruling the defendant’s objection totheplaintiff’s testimony, tending to show a parol contract of insurance.

2. It is respectfully submitted that his honor, the presiding judge, .erred in refusing defendant’s motion for a non-suit, based on the grounds that the plaintiff had failed to show affirmatively either that the agent had authority to make the alleged parol contract of insurance or to issue a policy, or (2) that such a contract, complete in all its terms, was made.

3. It is respectfully submitted that his honor, the presiding judge, erred in refusing defendant’s motion for a non-suit, based on the ground that the plaintiffs had failed to prove that the proofs of loss were received by the company, as required by the policy, sixty days before the suit was instituted; the evidence being that said proof was sent by him in his letter of 3d June, received by the former general agents of said company on the 5th, and acknowledged in their letter of 6th June, and sent by them to the company on the 6th June; and erred in holding that, by the company’s refusal to pay in June, the letter of 28th May became sufficient proof of loss.

4. It is respectfully submitted, that his honor, the presiding judge, erred in charging the jury that the letter of the latter part of May, 1889, was a proof of loss.

5. It is respectfully submitted that his honor, the presiding judge, erred in charging the jury that plaintiff could not sue “before sixty days expired after notice of loss,” whereas the sixty days run from the due receipt of the proof, and not from-the notice of loss.

6. It is respectfully submitted that if his honor, the presiding judge, correctly charged the jury that when the company waived the proof (by denying the liability), the sixty days then»began to run, and the plaintiff must allow sixty days; he should have charged, then, that the plaintiff could not recover.

7. It is respectfully submitted that his honor, the presiding judge, erred in refusing defendant’s third request to charge.

8. It is respectfully submitted that his honor, the presiding judge, erred in refusing defendant’s fourth request to charge.

9. It is respectfully submitted that his honor, the presiding judge, erred in refusing defendant’s sixth request to charge, and in charging the jury that the second letter, containing the affidavit, was merely additional proof and notice.

10. It is respectfully submitted that his honor, the presiding judge, erred in adding to the seventh request, “and I charge you again, that- it had sixty days after the loss before they could sue, in which they might pay or not.”

11. It is- respectfully submitted that his honor, the presiding judge, erred when, in answer to plaintiff’s attorney’s question, “Did I understand your honor to say that the sixty days began to run after the company wrote them, denying all liability?”' he said, “I say that is one of the questions I leave to the jury to settle upon; I charge them that the sixty days must run— that is one of the issues in the case.”

12. It is respectfully submitted that his honor, the presiding judge, erred in not clearly charging the jury when the sixty days began to run, the charges referring thereto being, it is deferentially submitted, confusing and irreconcilable.

13. It is respectfully submitted that his honor, the presiding judge, erred in refusing defendant’s motion to set aside the verdict of the jury and for a new trial, and in making the order of the 18th September, 1889, and in every conclusion of law therein stated, especially that the receipt of the letter of 28th May, 1889, by the former general agents, was a receipt by the company at its home office, as required by the condition of the policy.

1 We will first consider the first and second grounds of appeal, as they pertain to the same question. We will be obliged to hold that an insurance company can make a contract of insurance by parol for which they will be bound. It is .too late in the day, in -view of the manifold forms by which obligations of insurance on property are firmly made by parol, to question the power of such companies to do so. That it may prove unwise, is no argument against such a policy. These corporations are clothed by law with the right to effect insurance upon property, and unless something in their organic constitution, to wit: the charters that give them life, restrict such an exercise of contracting power, or some law of the laud to the same effect (and none of these things have been brought to our attention in this case), we will not deny such power. If, then, it was in the power of this company to effect insurance of property by parol contract, the presiding judge did not err in admitting testimony in relation thereto.

Nor did he err in refusing a non-suit because it was not shown affirmatively that the agent had such power. If the company had the power, its agents could do so. It acts alone through agencies. Of course, if there had been brought home to the plaintiff that the company denied its agent such power, then he would have acted to the contrary at his peril. But there was no such testimony here. The judge did not err in refusing a non-suit because a contract in all its parts was not proved. There was such a contract as bound the company, if the testimony was to be believed. We feel it incumbent upon us to make this proposition clear. We do not, as we before remarked, regard this policy of insurauce companies in making contracts of insurance by parol as wise, nor do we mean to encourage such a practice. We express no opinion on that subject. What we mean to declare is, that an insurance company that has taken the money of its customer upon the promise of a policy that is never delivered, cannot repudiate such an obligation by saying that the agent it appointed in writing, as in this case, with full power to represent such company in effecting policies in its name, did not have authority to perform such acts of insurance within the scope of his authority. We sympathise very heartily with the expression of Mr. Justice Miller of the United States Supreme Court, in the case of Insurance Company v. Wilkinson, 13 Wall., 235, when he said: “The powers of the agent are prima facie coextensive with the business entrusted to his care, and will not be narrowed by limitations not communicated to the persons with whom he deals. An insurance company, establishing a local agency, must be held responsible to the parties with whom they transact business for the acts and declarations of the agent within the scope of his employment, as if they proceeded from the principal.” These grounds of appeal are dismissed.

2 We will next consider several grounds of appeal relating to the proof of loss required. The plaintiff voluntarily in his complaint stated that the usual policy issued by this company, and by which he conceived that he'was to be governed, required “the loss or damage to be estimated according to the actual cash value of the property at the time of the loss, and to be paid in sixty days after due notice, and proofs thereof should have been made by the assured and received at their office,” &c., and also to give notice promptly of loss by fire, etc. Now, unquestionably, the careful compliance with the mode of proof, including its attestation, could have been insisted upon by the insurance company. Its agent had a perfect right, on the 30th of May, 1889, to have demanded this absolute compliance with all the conditions that the plaintiff admits were a part of his contract, and we apprehend the company, at its home office, when the letter of its general agents, that was written on the 30th May, 1889, to the plaintiff, was received at such home office, could have disavowed such action of its general agents, and required strict comydiance with these conditions. But neither did so. The general agents never asked for any careful proofs of loss; their inquiries related solely to facts in the knowledge of plaintiff as to the contract of insurance. And the insurance company, from its home office, contented itself with a denial of all liability under the contract whatsoever. Its reply was virtually a declaration of war. Now, under these circumstances, was there not a waiver by the defendant company of any other proofs than those contained in the letter of 28th May, received by them on the 30th May ? It makes no difference that the home office ouly received a sight of that letter between the 6th and 14th June, for their general agents in this State saw the letter on the 30th May, and in the eye of the law the defendant then saw it.

Remembering that, by the terms of the policy, the assured •was to give notice promptly, we think the letter of the 28th May, telling of the fire that occurred on the 24th, was prompt enough. And furthermore, we have concluded that where some proof of loss is furnished, and the defendant company does not complain at the time of the receipt of such defective proof, but denies that there is any contract of insurance whatsoever between them, full proof is waived. Tayloe v. Insurance Co., 9 How., 406. In the case cited, proofs of loss were made long after the fire, but the company had denied all liability ; the court held, “that the denial of having entered into the agreement, and refusal to issue the policy, also set forth, are sufficient ground upon which to infera waiver of the production of the preliminary proofs as a condition of liability.” Dial v. Life Insurance Association, 29 S. C., 560. The principle underlying the whole matter is a question of fact as to a waiver by the insurance company of the condition that proofs be rendered by the assured promptly, and consisting of certain alleged forms of proof. It will be admitted that the insurance company could directly agree to waive these forms. And it is equally as certain that the same result would follow a line of conduct by the insurance company, which repudiated any connection with the assured in relation to a contract of insurance. Inasmuch, therefore, as the Circuit Judge has held that the contract here (and from this conclusion there is no appeal) required an interval of sixty days to elapse between the proof tendered 30th May, and as the action was not brought until the 5th August, 1889, it follows that the Circuit Judge did uot err in his charge to the jury in this respect. This declaration by us disposes of the 3d, 4th, 5th, 6th, 10th, and 12th grounds of appeal.

3 We will now consider the 7th, 8th, and 9th grounds of appeal. By a reference to the text of these bequests, it will be seen that the appellant sought a charge of the Circuit Judge upon the facts. This he refused to do, and in his refusal he acted in obedience to the law of this commonwealth forbidding judges from charging juries upon questions of fact. These grounds of appeal are dismissed.

4 Lastly, we will notice the alleged error of the Circuit Judge in refusing the motion of appellant to set aside the verdict of the jury and to grant a new trial. After a careful consideration of the matters here referred to, we perceive no error. It was in the discretion of the Circuit Judge to grant a new trial. Where that discretion is based upon matters of fact, we are powerless. It is only when errors of law occur, that this court can intervene to correct the order refusing the new trial. The appellant has failed to point out, in his ground of appeal, such errors of law. It must follow, then, that we cannot do so. This ground of appeal is dismissed.

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

Mr. Justice McGowan concurred.

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Dissenting Opinion

Mr. Ohiee Justice McIver

dissenting. It seems to me that the Circuit Judge erred iu his instructions to the jury as to the effect of the letter of 28th May, 1889. I do not think such letter amounted to anything more than a mere notice of the loss, and cannot be regarded as any proof of loss whatever. Now, as the contract, as set out by the plaintiff in his complaint, expressly provides that the amount due on the policy should be paid “in sixty days after due notice and proofs” of the loss “should have been made by the assured, and received” at the office of the company, the plaintiff, clearly, would have no right of action until the expiration of sixty days from the receipt of both notice and proofs of loss. While it may be true that a denial of liability would dispense with the necessity for furnishing proofs of loss, yet the “Case” shows that such denial of liability was not made sixty days before the action was commenced. So that, if the denial of liability is to be regarded as a substitute for the proofs of loss, the right of action would not accrue until after the expiration of sixty days from such denial; and, therefore, under this view, the action was prematurely commenced.

Now, whether the defendant would- be entitled to sixty days from the denial of liability before any action could be commenced against it, is a question which does not seem to have been considered or passed upon by the Circuit Judge, and hence, such question is not properly before this court. Indeed, the Circuit Judge .seems to have conceded, at least by implication, that the defendant "was entitled to sixty days from the denial of liability; but as, in his opinion, the letter of the 28th of May did amount to some proof of loss, and as that letter was written and received by the general agents of the company more than sixty days before the commencement of the action, the verdict of the jury was, doubtless, rested upon that view; in which, I think, the judge erred. That this was the view of the Circuit- Judge is conclusively shown by the following language, contained in his order refusing the motion for a new trial: “The question that gives most trouble to decide is, (as) whether sixty days elapsed after the service of proofs of loss before the bringing of this action. I think the company’s denial of liability was a waiver of further proof, and a waiver of any defects in any proofs served. This being so, the letter of 28th May was proof. Now, this letter was received by Seibels & Son, general agents of the defendants, on the 30th May. I regard that as a receipt by the company, and that the sixty days then began to run.” I cannot, therefore, concur in the conclusion reached by the majority of the court.

For a proper understanding of the case, I would suggest to the reporter to embrace in his report of the case so much of the complaint as sets forth the terms of the contract, the judge’s charge, and a copy of the letter of 28th May, 1889.

Judgment affirmed.

5 In this case there was a petition for rehearing, upon numerous grounds, upon which petition the following order ter curiam was endorsed, December 20, 1892 : All the points raised by this petition were fully considered and determined by a majority of this court; and, as we do not find that anything was overlooked which was deemed material, there is no ground for a rehearing. It is, therefore, ordered, that the petition be dismissed, and that the stay of the remittitur heretofore granted be revoked.