April 26, 1922. The opinion of the Court was delivered by This is an action on a policy insuring an automobile. The automobile was burned, and the company refused to pay. The evidence, or so much as is proper, will be given under the decision of the various assignments of error. The judgment was for the plaintiff.
I. There was a motion made for a directed verdict; this was refused. His Honor could not have directed a verdict. There were three provisions in the policy for forfeiture:
(a) The insured must be sole and unconditional owner.
(b) The property insured must not be under mortgage.
(c) The property insured must not be used in public service.
There was evidence undisputed that there was a mortgage on the machine, but there was also evidence that the agent of the defendant knew it was under mortgage. The car had been used as a public service car, but had been withdrawn from public service before the fire. There was evidence from which the jury might have inferred that the person who wrote the policy for the defendant knew this fact also — that the car was bought to be used in public service before the policy was issued. See Gandy v. Ins. Co.,52 S.C. 224, 29 S.E. 655. The defendant claimed that the policy was void ab initio, and although the premium had been paid, yet the record does not show any offer to return the premium. There was also evidence that Mr. Johnson, who wrote the policy, gave the plaintiff proofs of loss and told him to make them out and the claim would be paid. *Page 221
It is true that the adjuster told the plaintiff that the company denied obligation, and it would do no good to put in a proof of loss, and this the plaintiff admitted, but said the local agent told him to put in the proof of loss, and it would be paid. The appellant claims that agency had been revoked, and the plaintiff did not show that the local agent was agent at the time. This overlooks the fact that the local agent was agent at the time the policy was issued, and, the relation once having been proven, it is presumed to have continued until there is proof of a change. The defendant's witness said he did not know when the relationship had ended. A verdict could not have been directed.
II. The second assignment of error is that his Honor charged the jury that the provision as to public service has no application if they believed that the car was not in public service at the time of the loss. The appellant in argument assigns reasons for the forfeiture, stating that a car on account of accumulation of oil in the machinery would be more liable to burn. If the policy had excluded cars that had been used in public service, then the point would be well taken. The forfeiture is manifestly for the increased perils incident to public service. The provision as to chattel mortgages clearly refers to the perils of an intentional burning, while covered by a chattel mortgage. This assignment of error cannot be sustained.
III. As to sole and unconditional ownership: The record does not show that the chattel mortgage was due. The policy was taken out only a day or two after the purchase, and, if it was due, the record should have shown it.
IV. The next assignments of error are that his Honor charged on the facts when he said:
(a) "Where they knew the plaintiff was using his car in a manner not permitted by the terms of the policy, it wouldn't do for them to keep quiet, say nothing, keep the *Page 222 plaintiff's money, and not let him know they would forfeit his policy."
This is not a charge on the facts. The word "where" is used in the sense of "if." That is, where they know, or in a case where they know.
(b) Again: "Did the company know it, or did its agents know it? Knowledge of the agent is knowledge of the company. If you are satisfied it did, make the company pay. And if you are satisfied that the public service business had nothing to do with causing the loss, why let the company pay." This is also said to be a charge of facts. This is not a charge on the facts, and the judgment is affirmed.
MR. CHIEF JUSTICE GARY and MR. JUSTICE WATTS concur.