Geo. Washington Fire Ins. Co. v. Adams

*240 The opinion of the Court was delivered by Mr. Justice StabeER. The defendant, Adams, in 1921, owned and conducted a mercantile business in the town of Chesterfield, known as the Adams Cash Market. On April 12, of that year, the plaintiff issued to him a fire insurance policy covering his stock of merchandise and store fixtures, in the sum of $3,000. It is undisputed that the policy contained the following provision: “unless otherwise provided by agreement in writing added hereto this company shall not be liable for loss or damage occurring. Other insurance, (a) While the insured shall have any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.” On October 21, 1921, the defendant obtained additional insurance on the same property in three other insurance companies, in sums aggregating $4,500. The stock of goods and fixtures, on December 20, 1921, were totally destroyed by fire, and, proof of loss having been made, as required by the rules of the company, the plaintiff paid to the defendant, in settlement of his claim, the sum of $2,824.27. Subsequently this action was brought for the purpose of recovering back'from defendant the amount paid him, with interest from date of payment. The plaintiff alleged, as the basis of its action, that it paid the insurance to the defendant under a false and fraudulent representation made-by him, that there was no other insurance on the property; and alleged further that when the defendant made these representations to the plaintiff he knew them to be false. The defendant, answering, admitted the receipt of the insurance money, but alleged that the plaintiff knew at the time it was paid that there was other insurance on the property and “thereby waived any rights it may have had in reference to other insurance.” The case was tried in the Court of Common Pleas for Chesterfield County, before Hon. Charles Carroll Simms, *241 special Judge, and a jury. At the close of the testimony, the plaintiff made a motion for a directed verdict, on the ground that there was no evidence that the plaintiff, before it paid the defendant the insurance money, had any notice whatever of other insurance upon the property destroyed. The Court overruled the motion, and submitted the case to the jury, who found for the defendant. The plaintiff’s motion for a new trial upon the same ground was also refused by the Court. The plaintiff appeals, and by two exceptions imputes error to the trial Judge in refusing, on the ground stated, its motion for a directed verdict and for a new trial. The testimony is not as full and as clear on the point in question as it should be. Douglass, the insurance agent, denied that any notice was given him at any time of additional insurance on the property. Adams testified as follows: “Q. When you came to settle that loss to whom was the settlement made? A. Me and Mr. Douglass. “Q. Did Mr. Edens have anything to do with the settlement ? A. Fie brought the check out there to me. “Q. You can state what happened between you and Mr. Douglass at that time. A. Well, when Mr. Edens brought the check out there he asked me to sign the check and he would carry it back and deposit it in the bank, and I told him no, I decided never to put any more money in that bank. “Q. Did you and he have any difference over some item? A. Yes, sir. “Q. As to how these proceeds should be applied, was that it? A. Well, the difference bewteen us was on some other little matters. “Q. The difference was on how the proceeds of this check were to be applied ? A. He wanted me to pay him up, and *242 I told him—. (Objected to as not responsive to the allegation of the amended answer. Overruled.) “Q. Mr. Adams, in that conversation with Mr. Douglass was anything mentioned by you to him of other insurance? A. Yes, sir. “Q. Was that mentioned or not by-you to Mr. Douglass in your discussion with Mr. Douglass as to how—. (Objected to on the ground that it is leading.) “The Court: You had better direct it down to the time Mr. Nock asked .the question of Mr. Douglass. “Q. Was that or not, at the time you had the conversation with Mr. Douglass when the check was being made? A. When the check was being made. (Objected to, as leading. Objection overruled.) “Q. When did you have the conversation with Mr. Douglass ? A. The day he gave me the check for my part of the money. Now, if you will allow me, I will tell you how the question came up. “Q. That was what I was going to ask you, how it came up ? A. He asked me to pay the debt of my son, my son owed, and I told him to wait until I got my other insurance and I would pay it.” It is to be noted that Adams testified that,, in his conversation with Douglass, he spoke of the other insurance. It does not appear, however, with positive certainty, whether the conversation took place before or after the check was delivered. It appears that Douglass was the agent of the company, and also the cashier of a bank to which a son of Adams was indebted. It further appears that an arrangment was made, whereby a part of the insurance money was applied to an obligation at the bank, and that Douglass gave Adams a cashier’s check for the part of the money not so applied. Adams’ testimony on this point is as follows : “Q. You cashed the George Washington check in Wadesboro? A. I did, on (or) the cashier’s check he gave me. “Q. Who gave you a cashier’s check? A. Douglass.- *243 “Q. You took those (yours) to the bank and got a cashier’s check in the place of it ? A. I did not take all, he kept it. “Q. You endorsed it? A. I did. “Q. And you handed it back to him? A. Yes, I did not endorse it until he-gave me the cashier’s check for the balance of my money either. “You made him give you your money first before you endorsed the check? A. No, he promised to do it, and he wrote the cashier’s check out. “Q. I understood you to say that you made him give you the cashier’s check for your money first? A. No, if I said it, I did not mean to' say so.” We think from this testimony that the jury might reasonably have inferred that, when Adams called on the agent to get the insurance money, and before the check was delivered to him, the conversation with respect to the payment, with a part ofj it, of his son’s indebtedness to the bank, took place; and it was during that conversation, Adams testified, that he stated to the agent that he had other insurance, and would pay the debt out of that insurance when he got it. While the record, as we have said, is not absolutely clear on this point, we think that the testimony quoted, when considered with other testimony in the case, made an issue of fact as to waiver by the company of the forfeiture which was properly submitted to the jury. The appellant further contends that, at the time of the alleged conversation between Douglass and Adams, Douglass, in trying to get Adams to apply a part of the insurance money to the payment of his son’s indebtedness to the bank, was acting for the bank and not as agent of the company, and therefore, even if Adams told him of the additional insurance, this was not notice to the company. We do not think this contention is sound. In delivering the check to Adams, and, until actual delivery was made, Douglass was acting as agent of the company. Under the *244 testimony, it was a question of fact for the jury to determine whether at the time the defendant advised Douglass, if he did so advise him, that he had other insurance on the property, Douglas was acting for the bank or was still acting as agent of the company. We think that, under the facts and circumstances disclosed by the testimonjr, all issues were properly submitted to the jury. In Rowell v. Fireman’s Insurance Co., 142 S. C., 457, 141 S. E., 20, it was held: “If more than one inference can be drawn from the testimony, question of fact is made for jury”—citing Rogers v. Atlantic Life Insurance Co., 135 S. C., 89, 133 S. E., 215, 45 A. L. R., 1172; Hollings v. Bankers Union, 63 S. C., 197, 41 S. E., 90. In Allen v. Jefferson Standard Life Insurance Co., 139 S. C., 41, 137 S. E., 214, the Court said: “Even though no one of the facts is sufficient in itself to warrant an inference of waiver, yet if, taken together, they tend to produce that result, then there is no error in submitting that question to the jury”—citing Cope v. Jefferson Standard Life Insurance Co., 134 S. C., 532, 133 S. E., 440; Clark v. Southeastern Life Insurance Co., 101 S. C., 249, 85 S. E., 407. The judgment of the Circuit Court is affirmed. Mr. Chiee Justice Watts and Messrs. Justices Brease and Carter consur.