Bros v. Liverpool & London & Globe Ins. Co

• Decision Date: 09 December 1914
• Docket Number: (No. 5657.)
• Citation: 16 Ga.App. 51,84 S.E. 311
• Parties: FINLEYSON BROS. v. LIVERPOOL & LONDON & GLOBE INS. CO.
• Court: Georgia Court of Appeals

84 S.E. 311

16 Ga.App. 51

FINLEYSON BROS.

v.LIVERPOOL & LONDON & GLOBE INS. CO.

(No. 5657.)

Court of Appeals of Georgia.

Dec. 9, 1914.

Rehearing Denied Feb. 26, 1915.

(Syllabus by the Court.)

Error from City Court of Bainbridge; H. B. Spooner, Judge.

Action by Finleyson Bros, against the Liverpool & London & Globe Insurance Company. Judgment for defendant, and plaintiff brings error. Affirmed.

W. V. Custer, of Bainbridge, and P. D. Rich, of Colquitt, for plaintiff in error.

Smith, Hammond & Smith, of Atlanta, and W. H. Krause and T. S. Hawes, both of Bainbridge, for defendant in error.

RUSSELL, C. J. The plaintiffs in error brought suit on two policies of fire insurance, issued by the defendant in error for $3,500 and $500, respectively, copies of which were attached to the petition. The policies covered a stock of merchandise, and were in the usual form, and contained what is commonly called the "iron safe clause, " stipulating that the assured should take an inventory of stock within 30 days of the issuance of the policy, or the policy should be void from that date, and that the assured should keep books containing a complete record of business transacted. The allegations of the petition are in substance as follows: The policies sued on were originally issued to Lamar, Taylor & Riley Drug Company, and were, by written consent of the defendant, transferred to the plaintiffs on May 6, 1913. Some time prior to June 30, 1913, one of the plaintiffs called on the defendant's agent at Bainbridge and stated that the plaintiffs wanted additional insurance. The agent stated it would be necessary to take an inventory to determine if additional insurance would be allowed. Thereupon the statement was made by this plaintiff to the agent that the plaintiffs had never previously taken an inventory, nor had they kept any books, to which the agent replied that "it would be necessary to keep books and make inventories, otherwise said policies would become null and void by their terms." The plaintiffs "immediately set about making an inventory, " and on June 30, 1913, completed the inventory and notified the agent that an inventory had been taken, and that it amounted to over $4,000. On July 2, 1913, the following indorsement was entered on the policies sued on:

"Indorsement July 2, 1913. From this date permission is granted allowing a total of $4,500 concurrent insurance on the first item of this policy, including this policy. Attached to policy No....... of the Liverpool & London & Globe Insurance Co., Bainbridge, Georgia.

"E. J. Perry, Agent."

The agent, Perry, did not tender to the plaintiffs any unearned premium, or advise them that their failure to keep books and prepare an inventory had rendered the policies null and void; and after the indorsement above stated he issued to the insured, as agent for another insurance company, a policy for $1,000 on the same property. The petition further alleges that by reason of the indorsement placed upon the policies by the agent, Perry, they were new contracts from the time of the indorsement; that the insured kept books since that time, and that they are entitled to recover on the policies. The defendant demurred generally to the petition, as setting forth no cause of action, and to the sustaining of this demurrer the plaintiffs excepted.

We are of the opinion that the court did not err in sustaining the demurrer. When the policies were...