Sample v. London &c. Insurance

The opinion of the court was delivered by

Mr. Justice Pope.

The plaintiff having entered into a contract with the defendant in April, 1891, whereby for a valuable consideration the defendant issued a policy of insurance, wherein the defendant agreed to pay to the plaintiff $250, in case a certain wooden building therein specified, should be destroyed by fire within the twelve months next ensuing the date of the contract, and the building in question having been destroyed by fire in May, 1891; on the 5th July, 1892, this action was commenced in the Court of Common Pleas for Edgefield County, in this State, to recover the loss. In her complaint is stated the date of the contract, the loss by fire, and the refusal of the defendant to pay the loss. The answer of defendant admitted the contract, bub denied plaintiff’s right to recover upon several grounds, among which was that there was a stipulation in the policy that in case of loss by fire during period of insurance, no liability should attach to insurance company under its policy to issue unless action was brought within twelve months after date of fire. At the trial, before Judge Hudson and a jury, it having been admitted by plaintiff that it was stipulated in the policy that no liability would attach unless action was brought within twelve months after the date of the fire, and that the fire occurred in May, 1891, and the action was commenced on the 5th July, 1892, Judge Hudson, without any further proceedings, and against the protest of plaintiff, directed the jury to find a verdict for defendant in this form: “Under instructions of the court, we find for the defendant company that the action was begun more than twelve months next after the fire.”

The plaintiff now appeals to this court on several grounds that will appear in the report of this case, but inasmuch as we deem that the first exception: “1. Because his honor erred in directing and instructing the jury to find a verdict for the defendant,” raises squarely the only question under the “Case” for appeal properly before the court, we will confine our attention to that.

1 The consumption of unnecessary time in the trial of causes should be avoided. Bub in a case where the complaint does not set out the facts relied upon by the defendant, and such defendant for the first time presents such facts in the answer, the orderly administration of justice demands that the trial shall proceed in the usual way, by first allowing the plaintiff to introduce such proofs as its pleading may require, then hearing the defendant’s testimony, then any reply by the plaintiff. Take this case as an illustration. Here the plaintiff did not set out in her complaint the facts relied upon by the defendant for its exoneration from liability under its contract with plaintiff Such being the case, the plaintiff was not required to offer evidence as to the facts relied upon by defendant. But when defendant’s time to open arrived, then it should have proved that there was such a stipulation in the policy issued by it to plaintiff. And the plaintiff, in her reply, had the right to show, if she could, either that the testimony of defendant was untrue, or that the defendant had waived this stipulation as to twelve months limit to action against it, or that the conduct of defendant had estopped it from urging any such stipulation in its defence. The conduct of the Circuit Judge practically deuied these rights to the plaintiff. Such conduct was error; being erroneous, a new trial must be ordered.

It is the judgment of this court, that the judgment of the Circuit Court be reversed and, that the action be remanded to the Circut Court for a new trial.