Affirmed. Messrs. Sam R. Watt and Rufus M. Ward, of Spartanburg, for Appellant, cite: As to the evidence adduced beinginsufficient to show the existence of an oral contract of insurance: 172 S.C. 525, 527, 174 S.E. 466. As to there beingno liability on insurer for loss occurring before the policywas effected: 3 S.C.L. (1 Brev.) 213. As to there beinginsufficient evidence as to the existence of a binder: 203 S.C. 471, 477, 27 S.E.2d 809; (S.C.) 49 S.E.2d 577. Messrs. Warren N. Martin and Mann Arnold, of Greenville, for Respondent, cite: As to no appeal lying fromorder granting a new trial when the order is based on factsor law and facts: 212 S.C. 26, 46 S.E.2d 176; 211 S.C. 526, 46 S.E.2d 152. As to the facts proved beingsufficient to support the finding that an oral contract of insuranceexisted: 206 S.C. 213, 33 S.E.2d 498; 207 S.C. 236, 36 S.E.2d 380, 386; 203 S.C. 471, 27 S.E.2d 809.
non-suiting Plaintiff and in denyingsummary judgment against lawyers who failed to reporta recorded mortgage to a title insurance company when thecompany had to pay the mortgage under a policy issued inreliance on the lawyers certificate, even if the insured knewof the title defect: 7 C.J.S. Attorney Client, Section 143, page 980; 103 A. 983; 173 S.E. 190; 196 A.2d 896; 37 A. 98, 180 Pa. St. 532; 300 F.2d 813; 189 S.C. 91, 200 S.E. 97; 212 S.C. 303, 47 S.E.2d 722. As to theCourt's having erred in permitting Defendants, after closeof Plaintiff's case, to amend their answer to deny a previouslyadmitted material fact: Section 10-692 Code of Laws of South Carolina, 1962; 49 S.C. 513, 27 S.E. 485; 60 S.C. 477, 38 S.E. 160; 84 S.C. 117, 65 S.E. 987. As tothe Court's having erred in granting non-suit on groundsthat an insurer is not obligated to issue a policy after expirationof a binder, even though the insured has acted onthe binder while in force by taking a mortgage and disbursingfunds: 203 S.C. 471, 27 S.E.2d 809; 43 Am. Jur.2d Ins. Section 216; 43 Am. Jur.2d Insurance, Section 218; 43 Am. Jur.2d Insurance. Section 207; 43 Am. Jur.2d Insurance, Section 227. James L. Mann, II, Esq., of Columbia, for Respondents, cites: As to the Court's below not having erred in non-suitingAppellant since payment of insured's claim was voluntaryaction which was not required by policy which wasinvalid due to fraud on part of insured, and which was notrequired under policy's conditions and stipulations, even ifvalid: 26 U.S. 151; 117 U.S. 519; 308 F. Supp. 922; 300 F.2d 813. As to the Court's below not having erred inpermitting Respondents to amend their answer because noprejudice to Appellant resulted from such amendment: S.C. Code Sec. 10-692; 137 S.E.2d 764; 147 S.E.2d 692. As to the Court's below not having erred in non-suitingAppellant since insurer was not obligated to issue policyafter expiration of binder where insured has not in anyway relied to his detriment on such binder: 27 S.E.2d 809.
; 100 S.C. 258, 84 S.E. 830; 137 S.C. 468, 135 S.E. 567. As to the failure to designateany company, or companies, being fatal to the validity ofan oral binder: 172 S.C. 525, 174 S.E. 466; 207 S.C. 236, 36 S.E.2d 380; 219 S.C. 17, 64 S.E.2d 8; 36 S.E.2d 385. As to error on part of trial Judge in his instructionsto the jury on the law of ratification and waiver: 236 S.C. 594, 115 S.E.2d 291; 164 S.C. 87, 162 S.E. 65; 136 S.C. 458, 134 S.E. 428; 193 S.C. 299, 8 S.E.2d 511; 130 S.C. 1,125 S.E. 285; 233 F.2d 500. As to error on part of trial Judge in instructingthe jury on the matter of damages: 127 S.C. 493, 121 S.E. 356; 15 Am. Jur. 807, Damages, Sec. 369. Messrs. Thomas A. Wofford and Theodore A. Snyder,Jr., of Greenville, for Respondent, cite: As to there beingample evidence of ratification to sustain the verdict: 164 S.C. 87, 162 S.E. 65; 236 S.C. 594, 115 S.E.2d 291. As to the oral binder being effective against the Appellant: 214 S.C. 222, 51 S.E.2d 757; 207 S.C. 236, 36 S.E.2d 380; 203 S.C. 471, 27 S.E.2d 809; 219 S.C. 17, 64 S.E.2d 8; 203 S.C. 471, 27 S.E.2d 809. As to the trial Judge properly charging the jury onthe element of knowledge requisite to ratification and waiver: 164 S.C. 87, 162 S.E. 65; 236 S.C. 594, 115 S.E.2d 291; 136 S.C. 458, 134 S.E. 428; 193 S.C. 299, 8 S.E.2d 511. As to trial judge properly charging the law ofdamages: 128 S.C. 344, 122 S.E. 858; 202 S.C. 103, 24 S.E.2d 153; 19 S.C. 66; 128 S.C. 487, 122 S.E. 875. March 15, 1962.
This contention is well supported by authorities especially where some fraud could be shown in the issuance of the application, but where the application is made in good faith to one having authority to receive the application and a loss happens between that and the countersigning, and there is no fraud involved, then the policy is countersigned, the better reasoned cases hold that the Insurance Company is liable for the loss that happened pending the counter signature. In line with this statement the case of Simons v. Amer. Fire Underwriters of Amer. Ins. Co., 1943, 203 S.C. 471, 27 S.E.2d 809 is in point. Another case in point on this question is Bankers Lloyds v. Montgomery, Tex. Civ. App. 1931, 42 S.W.2d 285, 286.
Messrs. Schultz Mills, of Columbia, for Appellant, cite: As to the evidence being insufficient to establish a contractof fire insurance, enforceable at time of loss: 183 S.C. 98, 190 S.E. 239; 203 S.C. 471, 27 S.E.2d 809; 202 La. 527, 12 So.2d 261; 169 S.C. 338, 168 S.E. 848; 184 S.C. 467, 192 S.E. 670. As to the effective force of the contractof insurance being a question of fact for the jury: 165 S.C. 427, 164 S.E. 6; 161 S.C. 198, 159 S.E. 542, 169 S.C. 338, 168 S.E. 848; 107 Ga. 199, 33 S.E. 65; 95 A.L.R. 472 et seq.Mr. John Gregg McMaster, of Columbia, for Respondent, cites: As to the insurance contract being in force at the timeof the loss: 179 S.C. 138, 183 S.E. 710; 175 S.C. 182, 178 S.E. 867; 202 S.C. 103, 24 S.E.2d 153; 204 S.C. 193, 28 S.E.2d 808; 182 S.C. 162, 188 S.E. 784; 191 S.C. 187, 4 S.E.2d 248; 169 S.C. 338, 168 S.E. 848; 203 S.C. 471, 27 S.E.2d 809. As to a general verdictbeing proper in the instant action: 110 S.C. 384, 96 S.E. 912. July 27, 1950.
Judgment affirmed. Messrs. Carlisle, Brown Carlisle, of Spartanburg, for Appellant, cite: As to this action being ex delicto rather thanex contractu: 185 S.C. 162, 193 S.E. 426; 172 S.C. 525, 174 S.E. 466. As to effect of an oral unratified binder: 203 S.C. 471, 27 S.E.2d 809. As to when circumstances areproven that infer a ratification, then ratification becomes aquestion for the jury: 114 S.C. 488, 104 S.E. 30; 164 S.C. 87, 162 S.E. 65; 206 S.C. 213, 33 S.E.2d 498; 207 S.C. 236, 36 S.E.2d 380. As to an adjuster being anagent of the company: 57 S.C. 358, 35 S.E. 572. As toweight that must be given Plaintiff's proof, on motion fornonsuit: 202 S.C. 491, 25 S.E.2d 742. Mr. Stephen Nettles, of Greenville, for Respondent Insurance Companies, cites: As to oral binder, unsupportedby anything other than agent's statement, being insufficientto bind agent's companies: 172 S.C. 525, 174 S.E. 466; 15 A.L.R. 981; 203 S.C. 471, 27 S.E.2d 809. As tocontract not being created by subsequent acts of adjuster: 96 S.W.2d 648 (Mo.); 132 F.2d 794; 20 F.S. 561.
Most of the cases cited involve the authority of the agent to issue a binder and a construction of the term, "not valid unless countersigned." ( Simons v. American Fire Underwriters, 203 S.C. 471, 27 S.E.2d 809; Union Marine General Insurance Co. v. Holmes, 249 Ala. 294, 31 So.2d 303; Pruitt v. Great American Insurance Co. 241 N.C. 725, 86 S.E.2d 401; Burdick v. California Insurance Co. 50 Idaho 327, 295 P. 1005; McKee v. Continential Insurance Co. 191 Tenn. 413, 234 S.W.2d 830.) Others involve a predated policy covering the destruction of property without the knowledge of either the insured or the insurer. In the present case Iberra was the agent of Mimms and had neither apparent nor actual authority to bind the risk.
e of negligence on the part of the defendant to justifysubmitting the case to the jury: (S.C.) 83 S.E.2d 338, (S.C.) 36 S.E.2d 73. As to credibility of witnesses beingexclusively a question for the jury: 161 S.E. 417, 163 S.C. 188; 180 S.E. 471, 176 S.C. 433; 26 R.C.L. 1069, Sec. 75; 125 S.E. 921, 131 S.C. 326. As to application of the"scintilla rule": 74 S.E.2d 914; 71 S.E.2d 407; 184 S.E. 148, 139 S.C. 437. As to the plaintiff being entitled tohave all testimony of both the plaintiff and the defendantconsidered in the light most favorable to the plaintiff on motionfor directed verdict: 210 S.C. 470, 43 S.E.2d 355; 157 S.C. 381, 154 S.E. 221; 143 S.C. 395, 141 S.E. 607; 134 S.C. 185, 132 S.E. 47; 186 S.C. 167, 195 S.E. 247. As to error on part of trial Judge in setting asidethe jury's verdict on the ground that plaintiff's alleged contributorynegligence barred recovery: 223 S.C. 204, 74 S.E.2d 835, 840; 169 S.C. 41, 168 S.E. 143; 195 S.E. 638, 186 S.C. 306; 169 S.C. 41, 168 S.E. 143; 27 S.E.2d 809; 220 S.C. 26, 66 S.E.2d 322; 22 A.L.R.2d 448; 215 S.C. 327, 31 S.E.2d 904; 66 S.E.2d 161, 218 S.C. 430; 54 S.E. 212, 74 S.C. 8; 49 S.E. 478, 70 S.C. 211. Messrs. Leatherwood, Walker, Todd Mann, of Greenville, and W.G. Acker, of Pickens, for Respondent, cite: As to rule that an automobilist need not anticipate that apedestrian in a place of safety will leave it and get in a dangerzone: 2 A. Blashfield Encyclopedia of Automobile Law and Practice 132. As to even when the evidence is consideredmost favorably to the Appellant, the deceased was guilty ofcontributory negligence as a matter of law: 187 F.2d 345; 20 F.2d 71; 41 F.2d 349; 225 N.C. 717, 36 S.E.2d 246; 172 Va. 193, 200 S.E. 637; 191 Va. 489, 62 S.E.2d 10; 225 S.C. 80, 81 S.E.2d 32; 253 Wis. 294, 34 N.W.2d 123; 201 F.2d 88; 205 S.C. 327, 31 S.E.2d 904; (S.C.) 82 S.E.2d 515; (S.C. ) 82 S.E.2d 685; (S.C.) 85 S.E.2d 749.
Under almost identical facts with the present case the Supreme Court of Tennessee held in McKee v. Continental Ins. Co., 191 Tenn. 413, 234 S.W. 830, 22 A.L.R.2d 980, that a provision in the Certificate of Insurance that "this certificate shall not be valid unless countersigned by a duly authorized agent of the company" merely confirmed the contract as stated, so that the period of coverage ran from the date stated in the policy as that of the inception of risk, rather than from the date of counter-signature six days later, and insured could not recover for a loss to his automobile which occurred three days after the expiration of the period of coverage as stated in the policy. The fact that an insurance policy provides: "This certificate shall not be valid unless countersigned by a duly authorized agent of the company" was held not to alter the inception and expiration dates as set forth on the policy in the following cases: Simons v. American Fire Underwriters of American Indem. Co., 203 S.C. 471, 27 S.E.2d 809; Oklahoma Farm Bureau Mut. Ins. Co. v. Brown, 208 Okla. 317, 255 P.2d 919. See also Anno. 22 A.L.R.2d 984.
Messrs. Mann, Arnold Mann, of Greenville, for Appellant, cite: As to there being no contract of insurance in instantcase: 53 S.E.2d 235 (Ga.); 1 S.E.2d 115 (N.C.); 27 S.E.2d 809, 203 S.C. 471; 178 S.E. 867, 175 S.C. 182; 29 Am. Jur., Insurance, Sec. 141; 74 S.C. 69, 54 S.E. 218; 101 S.W. 691 (Mo.). As to respondentbeing barred from recovery on alleged insurance contractbecause of fraud: 179 S.E. 490. 175 S.C. 425; 3 S.E.2d 251, 190 S.C. 515; 9 S.E.2d 41, 194 S.C. 25; 164 S.E. 175, 165 S.C. 494.