The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1899-11-01
NOT so EASY TO CHEAT.
The Supreme Court ts LOOkin After
the Tricks by Which Insurance
Companies no Often Defeat their

The Supreme Court is Looking After
the Tricks by Which Insurance
Companies no Often Defeat their
Customers.
In last weeks issue we showed that our Su-
preme Court had laid down principles pro.
tecting the rights OF the people against foreign
Building and Loan Associations.
Our Supreme Court has been equally careful
in guarding the rights of those sustaining loss
by fire under policies OF insurance.
In the case of Copeland Western Assurance
Co. 48 s. c., 26 the following principles were
!. That where the defendant claims that
the plaintiff has not O right OF recovery on
that he failed to comply with the require
ments Of the policy, such objection must be
set up in his answer TO the complaint
2. That where the defendant sets up de-
fense in his answer that the plaintiff is barred
Of bis right of recovery on the policy Of insnr-
ance, by reason of his failure to perform Ger
tain things therein required to be done on his
part, IL IS not incumbent on The plaintif to IN
him, and consequently Joitvre TO introduce
such testimony does not entttle the defendant to
an order Of nonSun.
3. That where the defendant sets up such
defence In his answer, and the facts brought
out during the introduction OF plaintiffs tes.
timony In chief show that there has not been
performance by the plaintiff OF such require
mems Of the policy, still the defendant Dould
not be entitled to an order Of nonsuit, because
such order tUould deprive the ptdinttD OF his
right to sho,o aoaiuer or estoPpet on the part Of
The defendant to make such objection
In the recent case OF Kingman Lancaster
Ins Co., 154 s. G. 500 these principles are
affirmed. The Court in commenting on the
above mentioned case and others sustaining
the same doctrine uses this language:
These cases show that forfeiture is matter OF
defence and that plaintiff may show waiver
In rebuttsll OF evidence OF forfeiture, although
in these cases waiver has not been pleaded.
Appellant contents, however, that sec. lS3 OF
the Code leads to a different conclusion. That
section reads: "In pleading the performance
OF conditions precedent In contract, II shall
not be 10 state ba tns sassa
that the party performed all the conditions
on his part and II such allegations be con
troverted, the party pleading shall be bound
to establish, on the trial, the facts showing
such performance" In this case the com.
plant alleged the performance OF all condi.
tions of the policy In the general terms OF
section 2S3. and the answer contained denial
OF such allegation. In the first place, we do
not think the production OF the inventory,
taken previous to the Issuance OF the policy,
after a loss, is a condition precedent. which is
some act or event necessary 10 make contract
tske effect. 1t is rather condition subse.
ouent, which Is intended TO defeat a contract,
which being matter OF defense, need not be
noticed In plaintiffs pleading. A forfeiture
d
focto. 1t is merely ground upon which the
policy ia voidable at the option Of the insurer.
Furthermore. If forfeiture Is matter OF defense.
as the cases cited estaniisneh' anso men onaer e,
constituting q counter-cIaim, and being mat
ter in avoidance, need not be replied 10 by
plaintiff, unless required 30 to do by the
Court on defendants motion. Davis v.
Schmidt, % 8. c., !2S. Then, in reason evi.
dence OF waiver on estoppel ought to be
allowed in reply 10 evidence TO show forfei-
ture, for TO show one estopped to assert
forfeitare for non-per.formance is In effect TO
show performance.
Provisions for forfeiture in an insurance
contract are for the benefit Of the insurer, and
may be waived at the insurers option: L ,,a AS
OF condition, but merely voidable. If the
insurer does not chose to assert forfeiture,
the policy stands by virtue OF the original
consideration. Waiver does invole the as.
sent of the insurer. since 1t is "the inten tional
REIMBURSEMENT Of q known right" but this
intent to relinquish the right to avoid a
policy for breach OF condition may he evil
denced by acts or conduct Of the insurer,
after knowledge OF q breach, recognizing the
policy as a valid existing contract, or the
insurer may be estopped to deny intent to
relin9ush its right by snch S eondnGt ,S i1sd aiteT
| to trouble and expense on the reasonable be-
| lief that the Insurer regards the policy as
| valid.
We have brought these rulings to the atten-
tion OF the public 10 apprise the people OF
their rights, and TO warn them not to sarlf1ce
their rights by disadvantageous compromise
after loss has been sustained.
Under the rulings ofthe court plaintiff is
not apt to be non suited, hut to have bis case
considered by the jury, in which case 1t may
confidently be expected that justice will be
done between the insured and the insurance
company.