Macon County Ass'n of Farmers' Mut. Fire Ins. Co. of Georgia v. Slappey

• Decision Date: 18 September 1926
• Docket Number: 17025.
• Parties: MACON COUNTY ASS'N OF FARMERS' MUT. FIRE INS. CO. OF GEORGIA v. SLAPPEY.
• Court: Georgia Court of Appeals

134 S.E. 834

35 Ga.App. 737

MACON COUNTY ASS'N OF FARMERS' MUT. FIRE INS. CO. OF GEORGIA v. SLAPPEY.

No. 17025.

Court of Appeals of Georgia, Second Division

September 18, 1926

Syllabus by the Court.

In this action upon a fire insurance policy, the evidence authorized the inference that the house, for the loss of which the plaintiff sued, was one of the houses covered by the policy.

The evidence failed, as a matter of law, to show any violation of the terms of the policy, either express or implied. Any errors of the charge of the court upon this subject were therefore harmless to the insurer.

Under all the facts appearing in the record, it cannot be said that the trial court erred in refusing a temporary postponement of the case as requested by the leading counsel for the defendant. There was no error in overruling the motion for a new trial.

Error from City Court of Oglethorpe; R. L. Greer, Judge.

Suit by George H. Slappey against the Macon County Association of the Farmers' Mutual Fire Insurance Company of Georgia. Judgment for plaintiff, and defendant brings error. Affirmed.

M Felton Hatcher, of Macon, and Jno. M. Greer, of Oglethorpe for plaintiff in error.

John B Guerry, of Montezuma, for defendant in error.

BELL J.

George H. Slappey brought suit against the Macon County Association of the Farmers' Mutual Fire Insurance of Georgia, a corporation, upon a policy of fire insurance. The policy and the application attached described as the subject-matter of the contract three houses, as follows:

"(1) F house, located 2 miles N. Marshalville, used as tenant, made of wood, cover of wood, with three rooms, good condition. *** (2) F house, located 150 yards W. No. 1, used as tenant house, made of wood, cover of wood, with three rooms, good condition. *** (3) F house, located 150 yards W No. 2, used as tenant house, made of wood, cover of wood, with three rooms, good condition. ***"

Each house was insured for $400. The suit was for the loss by fire of house No. 2. The defendant, in its answer, denied:

"That any of the property covered by said policy was or has ever been destroyed, and states here and now that the building which the petitioner claims was destroyed was not and has never been covered by the policy of insurance mentioned."

The remainder of the answer was a mere general denial of the material allegations of the plaintiff's petition.

The company, by its name and by the form of the particular contract, appears to have been organized as a mutual company mainly for the purpose of insuring farm property of the property of farmers. The policy provided that the company and the insured should be governed by the by-laws. A copy of the by-laws was attached to the petition and contained the following provisions:

"(4) No building shall be taken into this company within any town or city, unless said building is made of metal, stone, or brick, and covered with metal, and is at least 100 feet from the property of a neighbor, and if made of wood and covered with metal it shall be 150 feet, and if both made of wood and covered with wood it shall not be less than 200 feet from the building of a neighbor.

(5) The agent may take into this company dwellings, barns, and contents (except seed and lint cotton), and outbuildings, household goods of all descriptions, farming utensils, including pleasure carriages, harness, and implements usually kept in barns. The agent can insure live stock; also churches and schoolhouses.

(6) Should any member desire to take out insurance on cotton, or any goods stored in buildings insured in this company, said goods being such as this company does not insure, then shall said member at once notify the agent or director, who shall suspend both the insurance and the liability to assessment to the same on such building until said policy expires, when the building shall again be reckoned on the association as before without additional charge to the owner."

"Debarred from Insurance.-Ginhouses, sawmills, any house that has steam power in it, stores, contents of stores, houses with stick and dirt chimneys, houses in town as per section 4, no cotton in the seed or bale."

No other provisions either of the policy itself or of the by-laws are here material. At the trial the jury found a verdict in favor of the plaintiff. The defendant made a motion for a new trial, which was overruled, and it excepted.

1. The contention that the policy did not cover the particular house seems to be based upon the theory that the house was a storage house and not a tenant house, or that the description of the property in the policy did not include the house destroyed. The evidence shows that at the time the policy was issued the plaintiff had on his farm only three houses of three rooms each, located generally, but not exactly, as stated in the policy. There were at that time only four houses in all on the place; the fourth being "a small house about half a mile up toward Ft. Valley." The plaintiff testified that the house for the loss of which he sued "was not built like the other two" mentioned in the policy; "it was built without a chimney and was divided into two compartments," and he used it both as a tenant house and as a storage house. He would have peach pickers sleeping in the house during peach season. He used it "for storage sometimes and for tenants sometimes."

A contractor, introduced as a witness for the plaintiff, testified that he built the house in question, and that it was known as a "shotgun house, being about 20 by 36 feet," and that it had "two partitions in it, making three separate compartments. It had a window in each end and some windows in the back. It could be used as a tenant house and as a storage house." It had no front porch and was not ceiled. "The door was a large one and could be slided back. The steps were movable." The secretary of the insurance company, introduced as a witness for the defendant, testified that he looked at the "burned house," and that it was "not either of the houses described in the insurance policy." Another witness testified for the defendant as follows:

"A building which is 22 by 36 feet, with a large sliding door, no front porch, with three compartments with no door between them, and with no chimney, is not a tenant house. I am familiar with tenant houses as they are usually built."

There is nothing in the evidence to show whether or not the house was occupied by tenants at the time the policy was written. There was evidence to the effect, however, that the agent who wrote the policy did so after viewing the particular house with the others described in the policy and himself filled out the application.

We think the above evidence was sufficient to authorize, if not to demand, the inference that the house in question was covered by the policy. The thing insured was not a tenant house, but an "F house," described in part as being used as a tenant house. The insurer does not suggest that any other house was meant. Even if that part of...