American Ins. Co. v. I. F. Peebles & Co.
| Decision Date | 20 February 1909 |
| Docket Number | 1,164. |
| Citation | 64 S.E. 304,5 Ga.App. 731 |
| Parties | AMERICAN INS. CO. v. I. F. PEEBLES & CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where a policy of fire insurance requires the insured to submit proofs of loss within a reasonable time, ordinarily it is for the jury to determine whether the proofs were submitted within such time; but, where the undisputed evidence demands a particular finding, it is not error for the judge to direct a verdict accordingly.
[Ed Note.-For other cases, see Insurance, Cent. Dig. § 1747; Dec Dig. § 668. [*]]
Proper diligence prior to the trial would have revealed the newly discovered evidence.
[Ed Note.-For other cases, see New Trial, Cent. Dig. § 210; Dec Dig. § 102. [*] ]
No error appears which would authorize the grant of a new trial.
Error from City Court of Atlanta; H. M Reid, Judge.
Action by I. F. Peebles & Co. against the American Insurance Company. Judgment for plaintiffs, and defendant brings error. Affirmed.
I. F. Peebles & Co., a partnership composed of I. F. Peebles and his mother, brought suit against the American Insurance Company on a policy of fire insurance covering a one-story brick building in the town of Butler, Ga., in which the plaintiffs carried on a general merchandise business. The fire, which resulted in the total destruction of the building, occurred on April 6, 1906, and originated in another part of the town. The day after the fire the insured gave the company notice in writing of their loss and requested the customary blanks on which to make formal proof thereof. Receiving no answer to this letter, the insured wrote again, and finally went to the company's general manager at Atlanta and requested in person that the blanks be furnished. This was on July 11th, and immediately thereafter the blanks were filled out and submitted under date of July 18th. The policy contained a provision that the insured "shall give immediate notice of any loss thereby in writing to this company, *** and within 60 days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating *** the interest of the insured and of all others in the property, the cash value of each item thereof, and the amount of loss thereon." The policy does not provide that a failure to submit proofs of loss within 60 days shall avoid the policy. The trial resulted in a verdict for the plaintiff directed by the court, and the defendant excepts to the overruling of its motion for a new trial.
Burton Smith and Lawton Nalley, for plaintiff in error.
Ben J. Conyers and Walter T. Colquitt, for defendants in error.
1. The first assignment of error raises the point that, since the insured failed to submit proofs of loss within the time stipulated by the policy, it was a question for the jury as to whether such proofs were submitted within a reasonable time. So far as material to a consideration of this point, the policy involved in the case of Southern Fire Ins. Co. v. Knight, 111 Ga. 622, 36 S.E. 821, 52 L.R.A. 70, 78 Am.St.Rep. 216, contains provisions similar to the one involved in the case at bar. In that case the Supreme Court held that a failure to submit proofs of loss within the time stipulated by the policy would not work a forfeiture, if the proofs of loss were submitted "in time for at least 60 days to elapse between the date upon which they were furnished and the expiration of the 12 months' limitation" within which suit should be brought on the policy. This time was fixed by the court as being a reasonable compliance with the stipulations of the policy; it being said by Judge Cobb that the policy would never be forfeited if the insured submitted proofs of loss within a reasonable time. What is a reasonable time must be determined in light of the peculiar facts and circumstances of each particular case. Where under the evidence reasonable men might draw different inferences or there is material conflict in the evidence, the determination of the question is for the jury. Brooks v. Boyd, 1 Ga.App. 65, 70, 57 S.E. 1093; Cin. Glass Co. v. Stephens, 3 Ga.App. 766, 60 S.E. 360. But, where the undisputed evidence clearly demands a finding that the proofs were submitted within a reasonable time, it is not error for the judge to direct the jury in accordance with the only legal result possible in the case. Abbeville Trading Co. v. Butler, 3 Ga.App. 138, 59 S.E. 450; Emerson v. Knight, 130 Ga. 100, 60 S.E. 255; Perry v. Macon Consolidated R. Co., 101 Ga. 400, 29 S.E. 304; Earnshaw v. United States, 146 U.S. 60, 13 S.Ct. 14, 36 L.Ed. 887. Applying this rule to the evidence in the case at bar, it was not error for the judge to instruct the jury that the proofs were submitted within a reasonable time. The fire occurred on April 6th. The very next day the plaintiffs notified the defendants of the loss, and requested blank forms, which were kept by the company and customarily sent to policy holders upon which proofs of loss are made. After waiting several days the plaintiffs wrote again, and were finally forced to make a trip to Atlanta in order to obtain the blank forms, and immediately thereafter filled them out and sent them to the company. In view of these facts it would have been illegal for the jury to have found that the delay on the part of the insured was unreasonable.
2. The policy contains a provision that it "shall be void *** if the subject of insurance be a building on ground not owned by the insured in fee simple." Where the company claims a breach of this condition, the burden of so proving rests upon it. 2 Clement on Fire Insurance, 182; Indian River Bank v. Hartford Ins. Co., 46 Fla. 283, 35 So. 228(3); Gate City Ins. Co. v. Thornton (No. 1,522) 63 S.E. 638; Morris v. Imperial Ins. Co., 106 Ga. 461, 32 S.E. 595. The insurance company did not introduce any evidence at the trial tending to show a breach of this condition. The evidence of the plaintiff on the question of ownership of the land, at the trial, was to the effect that I. F. Peebles & Co. had been in possession since 1895, claiming a fee-simple title, and that the deeds were not on record and had been lost. One of the grounds of the motion for a new trial is based on alleged newly discovered evidence tending to show that the land upon which the building stood was owned by I. F. Peebles, instead of I. F. Peebles & Co. Even if it should be established beyond question that one of the partners owned the lot individually and that the other had no interest therein, it is extremely doubtful whether this would show a breach of the condition, under the rule of strict construction which must be indulged against the insurer; for there is respectable authority for the proposition that, to hold the policy void because of this condition, there must be an ownership in some person who is not a party to the contract of insurance. Mascott v. Insurance Co., 69 Vt. 116, 119, 37 A. 255. The policy was to be void only if the building was on "ground not owned by the insured in fee simple." The moral hazard may possibly be increased where some of the persons insured are interested in the building and not in the land, because, where the ownership attaches both to the building and the land, the temptation to burn is lessened, since the owner might lose the value of the use of the land during the period of vacancy; and this reason might apply even in the case of a partnership. But we deem it unnecessary to decide the question just suggested.
The alleged newly discovered evidence would not authorize a new trial. It is not necessarily inconsistent with plaintiff's testimony at the trial, and is of slight probative value, consisting merely a deed, dated in 1883, from Charlton G. Ogburn to I. F. Peebles, and a deed, dated November 23, 1907, from I. E. Peebles to Mrs. S. A. Peebles, his mother, conveying an undivided one-half interest in the land in question, together with the certificate of the clerk of the superior court to the effect that the latter deed had been lodged with him for the purpose of being recorded. The Ogburn deed has been of record in Taylor county, Ga., since 1883, and cold easily have been discovered by the exercise of proper diligence prior to the trial. The deed from Peebles to his mother, given after the trial in the court below, is not inconsistent with the testimony, delivered at the trial, to the effect that the deed of I. F. Peebles & Co. to the property had been lost, and that the new deed was merely to take the place of the lost one. Furthermore, a proper notice to produce would have put the defendant in possession of the plaintiffs' muniments of title, and would have enabled the defense now sought to be raised to have been presented at the former trial. This court is now thoroughly committed to the proposition that the new trials will not be given to litigants who have exercised post mortem diligence only. Murphy v. Meacham, 1 Ga.App. 155, 57 S.E. 1046; De Vane v. A., B. & A. R. Co., 4 Ga.App. 141, 60 S.E. 1079.
3. We have carefully considered each of the assignments of error, and have examined the authorities cited in connection therewith, but find nothing to authorize the grant of a new trial.
Judgment affirmed.
On Rehearing.
It is proper, perhaps, that we should notice that ground of...
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