The appellant's statement of the case is as follows:
"This action was begun in the Court of Common Pleas for Horry County on the ____ day of May, 1922, upon a certain policy of accident insurance issued by the defendant to the plaintiff on a Mitchell automobile. *Page 261
"The case came on for trial at the October, 1923, term of said Court before the said Circuit Judge and a jury.
"Upon reading the pleadings, plaintiff's counsel moved for permission to amend the complaint by striking out the words `by reason of stranding and sinking,' in Paragraph 4, which motion was resisted by defendant's counsel, but the Court allowed the amendment, and this action is the ground of the first exception. At the close of the testimony defendant's counsel moved for a nonsuit, but it was refused, and at the close of all of the testimony said counsel moved to direct a verdict upon the grounds hereinafter stated, in the third exception which motion was also refused. The jury found a verdict for $693.44. Subsequently, counsel moved for a new trial upon the grounds set forth in the exceptions, which motion was also refused by an order duly filed. In due time defendant's counsel gave notice of its intention to appeal from the said rulings and order and from the judgment entered herein.
"The complaint alleged in Paragraph 2 that the policy in question was issued on the 15th day of May, 1921, and that thereby the defendant insured the plaintiff against the following perils, to wit:
"(a) Fire arising from any cause whatsoever and lightning.
"(b) While being transported in any conveyance by land or water — stranding, sinking, collision, burning or derailment of such conveyance, including general average and salvage charged for which the assured is legally liable,' — and in Paragraph 4 that on or about the 10th of September, 1921, while the said policy of insurance was in full force and effect, while being transported on the flat or ferry boat across the Pee Dee river at Yahannah Ferry, `the said automobile was damaged and ruined by reason of stranding and sinking within the terms of said policy and did sink in the said river' and was damaged $1,000.00, and that said amount had been demanded and payment refused, and that the same *Page 262 was due by the defendant to the plaintiff with interest from 10th December, 1921. The defendant, by its answer, denied having sufficient knowledge or information sufficient to form a belief as to the plaintiff's ownership of said automobile, and denied the allegations of Paragraph 4, and especially denied that the damage, if any, sustained by said automobile, which it did not admit, was within the perils and risks carried by said policy.
"It appeared from the testimony that between 3 and 4, on the night of the 10th December, 1921, the plaintiff appeared at the Yahannah Ferry, and aroused the ferryman, Harley Cribb, and asked for transportation on the flat or ferry boat across the Pee Dee river at that point; that he was driving the Mitchell car, described in said policy, with a negro sitting alongside of him, and that he had been drinking, though the ferryman testified that he was operating the car all right, and that the car was run upon the flat, which was then set in motion, and that when half way across the river, for some cause, it suddenly shot forward, as the plaintiff says, `like a flash,' and the ferryman says, `just in the twinkle of an eye it dashed into the river.' The flat was equipped with the usual apron attached and working with arms on the side to make an easy entry of vehicles on and off the flat. It is lowered to receive a vehicle and raised as soon as the flat is in motion, and lowered again at the opposite bank, and is not intended to bear any weight except when resting upon the bank. The plaintiff testified that when the car struck this apron, which was very close, it broke and he and his car were precipitated into the river, the negro barely escaping by jumping on the flat. Of course, it is obvious that the starting of the car was due either to the driver or the negro getting the motor started, probably accidentally.
"The plaintiff was rescued with considerable difficulty, and subsequently the car was lifted from the bottom of the *Page 263 river, and after some time was repaired and sold by plaintiff or some one for him."
I. The first assignment of error is that his Honor allowed the plaintiff to so amend his complaint as to destroy his cause of action. Of this the defendant cannot complain. If the plaintiff struck out the necessary allegations of his complaint, the defendant's remedy was by demurrer. It may be true that the presiding Judge may have overruled the demurrer, but the defendant would have reserved his question.
II. The next assignment of error that we will consider is the failure of the presiding Judge to construe the contract. His Honor could not have done anything else underWheeler v. Ins. Co., 125 S.C. 324, 325; 118 S.E., 609, 610, where we find under almost the same language:
"We do not think his Honor was in error in holding the contract was ambiguous, as complained of, and in submitting the question to the jury. He charged the law correctly applicable thereto.
"As to accident insurance the rule is stated in 1 Corpus Juris, 414:
"`In case there is any ambiguity in the policy, the rule is that all provisions, conditions, or exceptions which in any way tend to work a forfeiture of the policy or limit or defeat liability thereunder, should be construed most strongly against those for whose benefit they are inserted, and most favorably toward those against whom they are meant to operate, and this rule is applicable to purely benefit accident policies as well as to the ordinary accident policy. Accordingly the Court will adopt the construction most favorable to the insured when a doubt arises in respect to the application, exceptions to, or limitations of liability, or clauses creating a forfeiture or relating to matters subsequent to the attaching of the liability, the rule being especially applicable to the latter.'" *Page 264
This is a stronger case for the respondent than theWheeler Case. The policy must be construed as a whole. A copy of this policy was, by consent, submitted to the Court, and it contains this provision:
"2. It is a condition of this policy that it shall be null and void —
"If the automobile described herein shall be used for carrying passengers for compensation, or rented or leased or operated in any race or speed contest, during the term of this policy."
It is manifest that, if the policy covered only damages from fire, lightning, or an injury to some other conveyance in which it is being transported, then these words are wholly without meaning, as races cannot be run on flat boats or railroad cars. There was no error here.
II. The next assignment of error to be considered is that the presiding Judge refused to grant a nonsuit or direct a verdict.
Until the contract had been construed, no verdict could have been found or directed. Besides this, the jury might have come to the conclusion that, when the flat was at the landing, the end next to the shore was resting on the bank, i. e., that end stranded; that, when the automobile (a very heavy car was driven onto the flat, it was driven close to the other end, so as to lift up the shore end and lower or sink the other end, and, the forward end being lower, the attraction of gravitation drew the car off into the water. There was evidence that the front end was submerged. It is true that there was a conflict about it, but it was the province of the jury to determine the facts.
The judgment appealed from should be affirmed.
MR. JUSTICE WATTS concurs. *Page 265