Milhous v. Globe & Rutgers Fire Insurance

The opinion of the Court was delivered by Mr. Acting Associate Justice John I. Cosgrove. This'is an action upon a policy of fire insurance. The cause was tried before a jury in the County Court of Orange-burg County and a verdict directed by the trial Court for defendant insurance company. *99 The exceptions, while five in number, make but the single point, that the case should have been submitted to the jury. A brief statement of the undisputed facts shows: Plaintiff at one time owned the land and buildings involved in this action, which were incumbered, however, by a mortgage to Edisto National Bank. The bank subsequently foreclosed its mortgage, bought in the property at the sale under foreclosure proceedings, and took a deed of conveyance of the property. The bank, then being the owner in fee-simple, entered into a contract in writing dated November 24, 1925, with plaintiff, to sell her the property for the sum of $6,200.00. The purchase price was to be paid in annual installments as therein set out. With respect to insurance on the property, the contract of sale provided that the bank -“may keep up for its own protection the insurance on the dwelling on said land for such amount as it may see fit, which in case of loss may be used either to replace the dwelling, as may be needed, or to reduce the indebtedness, as the said bank may see fit to do.” (Italics added.) The bank, under this provision of the contract, effected in other companies than defendant insurance for $3,000.00 which was collected when the property was destroyed by fire on December 7, 1929, and applied upon the indebtedness due under the contract. It would appear from the evidence that there was a total loss of the property insured. On November 6, 1929, defendant issued its policy of insurance to plaintiff for the total sum of $1,500.00, against loss or damage by fire to the dwelling house in the sum of $1,300.00 and to household furniture in the sum of $200.00. The property insured under this policy was stated to be of the value of $3,000.00. The fire and loss occurred December 7, 1929. Upon its denial of liability this action was commenced against defendant. The complaint is in the usual form for an action of this character. The answer, after admitting the issuance of the *100 contract of insurance in controversy, set up a number of defenses which it is not necessary at this time to consider. At the conclusion of all the testimony defendant made a motion for a directed verdict in its favor upon the entire policy, while plaintiff moved for a directed verdict in her favor in respect to the insurance in the sum of $200.00 on the furniture and household goods. The Court submitted to the jury the question of defendant’s liability upon the item of $200.00 insurance on the furniture. Upon this item the jury found for plaintiff and from this ’finding there is no appeal. The Court, however, directed a verdict for defendant on the item of $1,300.00 insurance on the real estate, which caused this appeal. While defendant proffered several grounds in support of its motion for a directed verdict, the trial Court placed its order only upon one ground. The formal order in writing should be reported. In substance, the Court held that the value of the property insured having been fixed in plaintiff’s policy at $3,000.00 and this amount having- been collected by the bank under its policies and credited to plaintiff’s account in accordance with the contract of purchase, plaintiff could not recover on the policy the subject of this action. We think the Court was in error in this conclusion. The facts covering the issuance of this policy to plaintiff and the interest covered by it were disputed and in conflict, and consequently raised an issue or issues properly determinable by a jury. It was not disputed that at the time this policy was issued and delivered to plaintiff, she had paid under her contract of purchase with the bank something more than $1,500.00. As a vendee under an executory contract of sale, she then had an insurable interest in the property, separate and distinct from that of the bank, at least to the extent of the amount so paid. There was testimony tending to show that she told the agent of defendant that there was already $3,000.00 insurance on the property to the Edisto National Bank; that she had contracted to buy *101 the place; that the property, was “mine and the bank’s” ; and that after giving him this information the policy was delivered to her. The testimony of defendant tended to deny these statements. This conflict clearly made the issues so arising questions for solution by the jury. The law governing the case is clear. Plaintiff admittedly had an insurable interest in the property, 14 R. C. R., pp. 916 and 1054. The value of that interest was fixed by the parties, according to plaintiff’s contention. Her testimony further tended to show that she insured that interest for $1,-300.00 and that defendant accepted the risk and issued its policy to'her, collecting the premiums therefor. That issue and the questions presented were peculiarly, for the jury under proper instructions of the Court. It is the judgment of this Court, therefore, that the order appealed from be reversed and a new trial granted. Mr. Chiee Justice Brease and Messrs. Justices Stabrer and Carter concur.