Alliance Ins. Co. v. Williamson

• Decision Date: 26 February 1927
• Docket Number: 17587.
• Citation: 137 S.E. 277,36 Ga.App. 497
• Parties: ALLIANCE INS. CO. v. WILLIAMSON.
• Court: Georgia Court of Appeals

137 S.E. 277

36 Ga.App. 497

ALLIANCE INS. CO. v. WILLIAMSON.

No. 17587.

Court of Appeals of Georgia, Second Division

Feb, 26, 1927

Error from City Court of Richmond County; J. C. C. Black, Jr. Judge.

Action by C. H. D. Williamson against the Alliance Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed on condition.

Smith Hammond & Smith, of Atlanta, and Hull, Barrett & Willingham of Augusta, for plaintiff in error.

W. Inman Curry and Pierce Bros., all of Augusta, for defendant in error.

Syllabus OPINION.

JENKINS P.J.

1. The policy of automobile fire insurance sued on, on which the plaintiff obtained a judgment for $1,500 as the amount of the loss, and $315 damages, contained the following provisions:

"The entire policy shall be void unless otherwise provided by agreement in writing added hereto, if the interest of the assured in the subject of this insurance be other than unconditional and sole ownership. Unless otherwise provided by agreement in writing added hereto, this company shall not be liable for loss or damage to any property insured hereunder while incumbered by any lien or mortgage."

It appears from the record that the plaintiff, C. D. H. Williamson, in good faith, acquired his title from Troy Williamson, who had purchased the property at a judicial sale. It appears that Moody, the person against whom the judicial proceeding was directed, had purchased the property from Chapman Motors Company, which retained the title thereto to secure a portion of the purchase price due by Moody. After a judgment setting up a lien in favor of Troy Williamson against the property had been rendered, and the property levied upon, a claim was filed by Chapman Motors Company, which claim was dismissed by the court, and the property was thereafter sold under the levy and judgment referred to, without renewal of the claim. At the trial of the instant case the defendant offered in evidence the title retention contract referred to and two of the past-due purchase-money notes signed by Moody, but did not purport to be the owner thereof, and offered no proof as to the source from which the notes and contract were obtained, whether from Moody or Chapman Motors Company, or as to who purported to be the owner thereof. The defendant excepts to the following charge of the court:

"Under the terms of the policy Mr. Williamson had to be the sole and unconditional owner of the automobile that was destroyed, and, if you find from the evidence that he was not the sole and unconditional owner of the automobile that was destroyed by fire, then I charge you he would not be entitled to recover. If you find from the evidence that Mr. Troy Williamson purchased the car at a sheriff's sale in this county, and the validity of the sale was not questioned by the Chapman Motors Company, the persons that sold the car, or by Mr. Moody, the original purchaser, and that Mr. Troy Williamson sold the car to the plaintiff, then the plaintiff has such title as will entitle him to recover in this case, provided you find he is otherwise entitled to recover."

Held: While, under the law of the Code, an insurable interest is defined as "some interest in the property or event insured," and a "slight or contingent interest is sufficient, whether legal or equitable" (Civil Code of 1910, § 2472), such an insurable interest is not to be taken as synonymous with the sole and unconditional ownership required by the terms of the policy; nor does the rule as to an insurable interest dispense with the contractual requirement as to liens upon the property constituting the subject-matter of the risk.

It appears to be the general rule that when the subject-matter of insurance is personal property, and the vendee is in possession under a conditional contract of sale, the title to remain in the vendor until the conditions are performed, the vendee is not the sole and unconditional owner. 7 Ann.Cas. 499; Virginia Fire & Marine Ins. Co. v. Lennon, 140 Va. 766, 125 S.E. 801, 38 A.L.R. 186, 200; 14 R.C.L. p. 258, § 234 et seq.; Williamson v. Orient Ins. Co., 100 Ga. 791, 28 S.E. 914; Convers v. Yorkshire Ins. Co., 30 Ga.App. 6, 117 S.E. 102. Whether or not the rule just stated would have application where the contract of purchase as entered upon by the insured is for the sole and unconditional ownership of the property, but where the insurer makes it to appear that there is an outstanding purchase-money note given under a conditional sale contract against some antecedent owner, it is not necessary to determine; nor is it necessary to determine whether the charge complained of must be accounted erroneous for the reason that the original owner referred to did not necessarily estop himself by his conduct from claiming title to the property after permitting it to be sold without renewing his claim (see McLennan v. Graham, 106 Ga. 211, 32 S.E. 118; Lawless v. Orr, 122 Ga. 276 [1], 50 S.E. 85); this being true for the reason that the burden rests upon the defendant of showing that the plaintiff was not the sole and unconditional owner of the property possessed by him and covered by the terms of the policy ( Giles v. Citizens' Ins. Co., 32 Ga.App. 207, 122 S.E. 890); and since the past-due notes were not introduced in evidence by the defendant as belonging to it, and since it failed to show from what source this bare possession had been acquired, whether from Chapman or Moody, and since such bare possession by the defendant company of such past-due instruments, without any sort of proof that they were in fact outstanding, raised no presumption of their nonpayment, the burden resting upon the defendant was not met.

If the defendant had claimed to be the owner and holder of the notes, the rule would be otherwise, and a presumption of their nonpayment would arise. Liddell v. Wright, 72 Ga. 899; Brantley v. Merchants' & Farmers' Bank, 22 Ga.App. 667, 97 S.E. 109; Hale v. Hale, 34 Ga.App. 314, 129 S.E. 445. Accordingly, any error in the charge complained of was harmless to the defendant.

2. The policy of insurance sued on provided as follows:

"In case the assured and this company shall fail to agree as to the amount of loss or damage, each shall, on the written demand of either, select a competent and disinterested appraiser. The appraisers shall first select a competent and disinterested umpire; and failing for 15 days to agree upon such umpire, then, on request of the assured or this company, such umpire shall be selected by a judge of a court of record in the county and state in which the property insured was located at time of loss. The appraisers shall then appraise the loss and damage, stating separately sound value and loss or damage to each item; and, failing to agree, shall submit their differences only to the umpire. An award in writing, so itemized, of any two when filed with this company shall determine the amount of sound value and loss or damage. Each appraiser shall be paid by the party selecting him, and the expenses of appraisal and umpire shall be paid by the parties equally."

It appears from an amendment to the petition that, under an agreement entered upon by the insured and by the insurance company, the question of the amount of the loss was submitted for appraisement, and that a finding was made, establishing the amount of the loss at the sum of $450. The petition alleged that the award was fraudulently procured, in that the appraiser selected by the defendant and the umpire selected by the appraisers were interested and biased, and were selected for the purpose of procuring a fraudulent award against the interests of the plaintiff. It is alleged in the petition that the purported umpire signing the award had fraudulently procured the temporary absence of the real umpire originally selected by the appraisers, for the purpose of having himself appointed in his stead, and for the purpose of agreeing with the contentions of the appraiser selected by the defendant,...