Curnow v. Phœnix Insurance

24 S.E. 74, 46 S.C. 79, 1896 S.C. LEXIS 41

• Court: Supreme Court of South Carolina
• Decided: March 11, 1896
• Status: Published

Opinion

The opinion of the court was delivered by

Mr. Justice Gary.

This was an action on a policy of insurance for $2,500, issued on the 22d. day of February, 1889, by the defendant aforesaid, to Mrs. A. J. Levy, on a stock of merchandise contained in a store at Blackville, S. C.

On the 18th. day of October, the property covered by the policy was destroyed by fire.

The complaint alleges: 1. The incorporation of the defendant. 2. The issuing of the policy by the defendant. 3. Ownership of the insured and loss. 4. That the said Mrs. A. J. Levy duly fulfilled all the conditions of said insurance on her part, and more than sixty days before the commencement of the action gave the defendant due notice and proof of the fire and loss aforesaid, and duly demanded payment of said sum of $2,500. 5. Assignment of the policy and moneys due Mrs. A. J. Levy, to the plaintiff, Mrs. Sarah V. Curnow. 6. Non-payment of said loss.

The defendant by its answer denied “that said A. J. Levy fulfilled all the conditions of said insurance on her part, and more than sixty daj^s before the commencement of this action gave to the defendant due notice and proof of the fire and loss thereunder,” as alleged in paragraph V. of the complaint. It also alleges the following defence:

First. That said policy of insurance was issued and accepted by the assured, upon the express condition, covenant, and promissory warranty thereunder contained, to wit: “It is further understood and agreed, that the assured shall keep a set of books, showing a record of his or their business, including all purchases and sales either for cash or credit, as well as a copy of his or their last inventory, all to be kept in an iron safe every night, otherwise this policy shall be null and void.”

Second. And the defendant alleges that the assured did not keep a set of books, showing a record of • her business, including all her purchases and sales both for cash and credit, as well as a copy of her last inventory, and did not keep all the books as aforesaid in an iron safe every night, during the continuance of said policy.

Third. And defendant alleges that on the night of the alleged fire, to wit: the 18th. of October, 1889, the cash book of the said assured, being one of the set of books showing a record of the business of said assured, including all purchases and sales both for cash and credit, was not kept in an iron safe of the said assured.

The case was tried before a jury, March, 1895, and a verdict rendered in behalf of the plaintiff for $2,500, and $875 interest. Judgment was duly entered upon the verdict, and the defendant appealed to this court, upon exceptions which will be set out in the report of the case.

The exceptions will now be considered, but not in the order in which they appear in the case.

1 2 First Exception. — The following statement of facts touching this exception appears in the “Case:” The case being called for trial, the jury was presented to respective counsel representing plaintiff and defendant; the plaintiff exercised the right of challenge by challenging the foreman of the jury. The defendant said they had no objection; thereupon the presiding judge appointed a foreman of the jury, and called the case for trial. Pleadings were about to be read, when plaintiff’s attorneys asked of the court permission to exercise the further right of challenge. The court ruled that they could exercise a further right of challenge, whereupon defendant’s attorneys excepted, on the ground that - the plaintiff having announced his satisfaction with the jury as a panel, the court thereafter having appointed a foreman thereof, the jury was, under the practice of the court, fully empanelled; therefore, no further objection could be made or allowed by the court during the pendency of the case, except for cause manifested by the jury. Thereupon the plaintiff’s attorneys challenged Mr. Browning, who had been named as foreman of the jury by the court; the court allowed the challenge, and Mr. Browning stepped aside; thereupon defendant’s attorneys excepted upon the grounds previously stated. The defendant’s attorneys, being asked by the court if they had any objection, replied: “That the jury had already been previously empanelled, and the defendant, under their view of the law and practice, had no right to make any further objections.” Whereupon the court announced that the defendant’s attorneys, if they saw proper to make any further objections, had now an opportunity of doing so. Section 2395 of the Rev. Stat. provides for the empanelling of juries Nos. 1 and 2 for the trial of causes in the Court of Common Pleas, and they are sworn immediately after being empanelled, and not in each case when thereafter called for trial. This manner of empanelling a jury is, of course, different from that prescribed for the trial of cases in the Court of General Sessions. Section 2404 of the Rev. Stat. is as follows: “In all civil cases, except in trial justice’s courts, in which a jury shall be charged with any issue, each party shall have the right to challenge without cause therein two of the jury so empanelled, and the place - of the juror so challenged shall be supplied as provided by law. The right of challenge shall extend to jurors drawn to fill the places of those challenged, provided the party challenging has not already exhausted the number of challenges allowed by law. As a juror is challenged, his place shall be filled by another juror before the challenging is further proceeded with. The plaintiff may first challenge one juror, then the defendant, and so on alternately until each party has made two challenges.” The amendment to the statute in 1882 makes this case very different from those relied upon by the appellant’s attorneys, which were decided before said amendment. Before the amendment neither the plaintiff nor defendant were allowed to challenge peremptorily a juror who did not belong to the original panel, but was called to fill a vacancy caused by the challenge of the other party. No reasons were set forth why the presiding judge allowed the plaintiff to challenge Mr. Browning as a juror, and in the absence of a contrary showing this court must presume that it was done in the proper exercise of his discretion. Furthermore, we do not see how the defendant was prejudiced in any manner whatsoever by the action of the Circuit Judge, when it had full opportunity to challenge the juror drawn in the place of Mr. Browning, and did not see proper to make any objection to him or any other juror on the panel. The conduct of a case in the empanelling of the juries must, of necessity, be left in a great measure to the discretion of the Circuit Judge. This exception is overruled.

3 Seventh Exception. — This exception raises the question as to the waiver on the part of the defendant, to insist upon a'compliance with certain requirements of the policy. J. H. Levy testified: “Q. Did you give notice after the fire to the agent of the loss? A. Yes, I think I did; he was there at the time himself. Q. He was there at the time of the fire himself? A. I think he was there at the fire. Q. Did the company send anybody down there after the fire, and after they gave notice to the company? A. I think after ten days, or somewhere along there, some one came, if I understand aright, from Atlanta. I don’t know who the party was he claimed to represent, or to be an adjuster of the company — the insurance company. Q. Did he do anything about the loss? A. He looked over the books, and required me to give him certified copies of all bills we bought, and he got them. Q. Did you give him the bills and vouchers? A. Yes, sir; if I can reriiember rightly, I did, for I got them myself, and I gave them to him. I had to write for them. Q. Did anybody else come down representing the company? A. Yes, sir, some time after Mr. Raine came down.”

When the proofs of loss were forwarded to the insurance company they were not returned, but the defendant denied liability because of the alleged violation of the “iron safe clause” in the policy, thus making it impossible for the assured, as defendant alleged, to render a correct statement of the loss or furnish all books relating to the conduct of her business. It is true, that J. H. Levy had made and delivered to J. S. Raine, the adjuster of the insurance company, an affidavit that the cash book was not in the safe at the time of the fire, but J. H. Levy testified that when he made the affidavit, Raine said it would facilitate them in getting their money, and that it would not hurt him. J. H. Levy also testified: “After signing that (the affidavit), I went down to the store again and we found one of the cash books, and I carried it up and said to Mr. Raine: ‘Now, notice this since you have got that; just make a note in the bottom of it that this cash book has been presented to you up to date, whatever it was.’ And he said, ‘that is all right.’ ” There was testimony that the other cash book was afterwards found, and was in the safe at the time of the fire. If Raine made the statements which Levy says he did, then they were evidence that the defendant waived strict compliance with the aforesaid requirements of the policy; and whether he made the statement, was also a question of fact for the jury. The jury had the right to take into consideration, also, the conduct of the defendant, after knowledge, as- it supposed, that the cash book was burnt, in determining the question of waiver. Charleston Ins. Co. v. Neve, 2d Md., 237; Stepp v. Nat. Ass’n, 37 S. C., 417; Dial v. Mut. Life Ass’n, 29 S. C., 560; Copeland v. Western Assurance Co., 20 S. E. R., 754.

Second, Third, and Foitrth Execeptions. — These three exceptions are not discussed in the arguments of appellant’s attorneys, because, we presume, either they are not insisted upon or they supposed the questions raised by them are embraced in the other exceptions. The court, however, is of the opinion that they cannot be sustained.

4 Fifth Exception. — The presiding judge did not charge the jury as requested, but did charge them as follows: “The defendant company files its answer and denies its liability now, and sets up as its defence that certain conditions of the policy * * * have not been complied with on the part of the’ assured, and for that reason the insurance policy is rendered null and void. The clause which is set up in the answer, and of which you have heard so much, is called the ‘fire safe clause.’ What is it? ‘It is further agreed that the assured shall keep all purchases and sales, both for cash and for credit sales, together with the last inventory of stock, &c., * * * in an iron safe every night; otherwise this policy shall be void.’ I charge you that this is a part of the contract of the insurance policy, and is binding upon the defendant. That under that section of the contract the assured obligates herself to keep a set of books showing the record of her business, including all purchases and sales, both for cash and on credit. Now, you will see from that being a part of the contract of insurance, the first question which addresses itself to you, then, is, did the assured keep a cash book, or a book showing her sales, both for cash and on credit? I charge you that, in order to enable her to recover under this policy of insurance, it was necessary for her to keep that book, as it is agreed under this contract. * * * Now, the question of fact comes before you, has the insurance company done any act by which it has waived its right to demand a strict construction of its contract? That is the question for you, whether or not there has been any waiver on the part of the insurance company to forfeit its right to a strict compliance on the part of the assured?” His honor refused to charge the request in the exact words, because it ignored the question of waiver. This exception is overruled.

5 Sixth and Eighth Exceptions. — These exceptions will be considered together. The fourth paragraph of defendant’s answer is as follows: “They deny that said A. J. Levy ‘duly fulfilled all the conditions of insurance on her part, and more than sixty days before the commencement of this action gave to the defendant due notice and proof of the fire and loss thereunder,’ as alleged in paragraph five,” &c. This form of denial is termed a negative pregnant, of which Mr. Pomeroy, in Rem. & Rem. Rights, section 618, says: “Such denial is one pregnant with the admission of the substantial fact which is apparently controverted; or, in other words, one which, although in the form of a traverse, really admits the important fact contained in the allegation. * * * Denials in the form of a negative pregnant arise (1) when the allegation is of a single fact, with some qualifying or modifying circumstances, and the traverse is in ipsis verbis, using exactly the same language, and no more; (2) when the allegation is of several distinct and separate facts or occurrences connected by the copulative conjunction, and the traverse is in ipsis verbis of the samq facts and occurrences, also connected by the same conjunction. In most of the reported decisions the courts have held such form of denial to be insufficient, and have declared that they raised no issues, treating the statements of the complaint or petition as actually admitted. This was the universal rule under the old system; and as it was not based upon any merely technical reasons or doctrine of pleáding, the same rule is properly followed under the Codes.” The same author, in section 619, says: “In an action upon a fire policy against insurers, the defendants moved for leave to file an amended answer. In denying this motion, the court said: ‘The denials are all liable to the objection that they are negatives pregnant.The complaint avers that on a particular day the property was all destroyed by fire. The answer denies this in the very words of the complaint. Such a denial is a negative pregnant with the admission that it may have been destroyed on some other day, and that a part may have been destroyed on the day named. Such denials have always been held insufficient.’ A complaint alleging ‘that the proofs of loss were filed with the secretary of the defendant on the 31st. of March, 1866’ — the denial was, ‘that the proofs were filed as alleged in the complaint.’ This was declared to be pregnant with the admission that they were filed on another day, within the time required.” See, also, vol. 1 Enc. PL & Pr., page 796. But, waiving all objections to the manner in which the allegations of the complaint are denied as aforesaid, the requests mentioned in these exceptions were objectionable on the ground that they ignored the question of waiver. See authorities supra.

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