Simpson v. General Exchange Ins. Corp.

The opinion of the Court was delivered by Mr. Justice Brease. This action was brought in the County Court for Green-ville County upon an insurance policv protecting plaintiff, insured, against loss by “theft, robbery, or pilferage” of a certain Buick sedan automobile in the sum of $1,140. The facts giving rise to this action are these: Plaintiff was in the “U-Drive-It” or delivery business in the City of Greenville, this State, and on the 24th day of November, 1927, while the policy was in force, rented the automobile in question, without a driver, to one J. W. Harris for a two hours’ drive. Harris failed to return the car, and neither he nor the automobile has been heard from since. Plaintiff sustained a total loss. ’ Defendant admits the execution of the insurance policy sued on, but seeks to escape liability thereunder by reason of a certain provision contained in a rider, conceded to be attached to the policy, set up in paragraph 2 of the answer as an affirmative defense as follows: “Permission is granted for the automobile described in this policy to be rented or leased or used as a public or livery conveyance for carrying passengers for compensation, provided, however, that if the insurance under this policy be also against the perils of theft, robbery, or pilferage, this company shall not be liable for any loss or damage which the assured may sustain caused by the fraudulent concealment or disposal of said automobile by any rentee or lessee.” It seems to have been conceded at the trial by all parties that the actual cash value of the automobile on the 24th day *402 of November, 1927, was $1,140, and that the insurance policy provided for the payment of only 75 per cent, of the actual cash value. At the conclusion of the testimony, his Honor, Judge Ansel, directed a verdict for plaintiff for $855, without interest, which amount was 75 per cent, of $1,140. Error is attributed to the trial Judge in so directing a verdict for plaintiff, and in not directing a verdict for the defendant. The conduct of Harris in obtaining possession of the automobile in the circumstances amounted to a theft thereof at the time he obtained possession of same. Simpson v. Palmetto Pire Insurance Co., 145 S. C., 405, 143 S. E., 184. There is no evidence of fraudulent concealment or disposal of said automobile by Harris. The rider relied upon, therefore, is not applicable. There was no error - in directing a verdict for plaintiff, and in refusing to direct a verdict for the. defendant. It is the judgment of this Court that the judgment of the County Court of Greenville County be affirmed. Mr. Ci-iiee Justice Watts and Messrs. Justices Stabler and Carter concur. .