Cannon v. Phoenix Ins. Co. of Hartford, Conn.

• Decision Date: 10 April 1900
• Parties: CANNON v. PH NIX INS. CO. OF HARTFORD, CONN.
• Court: Georgia Supreme Court

35 S.E. 775

110 Ga. 563

CANNON v. PH NIX INS. CO. OF HARTFORD, CONN.

Supreme Court of Georgia

April 10, 1900

Syllabus by the Court.

1. An insurance company which by its policy contracts to insure "against all direct loss or damage by fire," etc is not liable for damages arising from smoke and soot escaping from a defective stovepipe, and emanating from a fire intentionally built in a stove, and kept confined therein, nor for damages caused by water used in cooling a portion of the ceiling heated by such pipe, but not actually ignited thereby; it not appearing that the use of the water was necessary to prevent ignition.

2. There was, on the trial of an action against an insurance company, no error in refusing to allow the plaintiff to introduce in evidence a proof of loss which showed on its face that the company was not liable, nor in refusing to allow the plaintiff to prove by parol testimony facts a recital of which in the proof of loss at the time of its presentation to the company would have made the proof legally sufficient to support a claim of loss.

Error from superior court, Whitfield county; A. W. Fite, Judge.

Action by A. E. Cannon against the Ph nix Insurance Company of Hartford, Conn. Judgment for defendant, and plaintiff brings error. Affirmed.

R. J. & J. McCamey, for plaintiff in error.

Smith Hammond & Smith, King & Spalding, and Shumate & Maddox, for defendant in error.

LEWIS J.

This was a suit brought in Whitfield superior court by A. E Cannon against the Ph nix Insurance Company of Hartford Conn., on an insurance policy issued by the company on plaintiff's stock of merchandise alleged to have been insured, and damaged by fire, the loss amounting to $3,000, and the defendant's liability therefor, pro rate with other concurrent insurance, being $300. On the trial of the case, plaintiff introduced the policy of insurance, one material part of which is as follows: "In consideration of the stipulations herein named, and of thirty-seven and 50/100 dollars premium, the [said company] does insure A. E. Cannon for the term of one year from the fifteenth day of February, 1897, at noon, to the fifteenth day of February, 1898, at noon, against all direct loss or damage by fire, except as hereinafter provided, to amount not exceeding twenty-five hundred dollars, upon the following described property, to wit: *** On her stock of merchandise, consisting chiefly of dry goods, notions, hats, clothing, caps, boots and shoes," etc. Plaintiff then offered to read in evidence the proof of loss made and given by plaintiff to defendant, the material part of which is as follows: "To the Ph nix Insurance Company of Hartford, Conn.: By your policy of insurance No. 1,115, issued by your agent at Dalton, Ga., on the 15th day of February, 1897, for the term of twelve months, you insured the undersigned, A. E. Cannon, against loss by fire to the amount of twenty-five hundred dollars on her stock of merchandise, consisting of clothing, dry goods, notions, boots, shoes, hats, and caps, while contained in the two story brick metal-roof building situated at Nos. 553 and 554, on the east side of Hamilton street, Dalton, Ga., block No. 4. On the ___ day of November, 1897, the same was damaged by fire, in the following manner: In arranging the stove on the ground floor of the building the day before, the pipe thereof, which extended through the ceiling and through the second story of the building, became disengaged at the ceiling of the second floor. When a fire was built in the stove on the morning of the 3d of November, the smoke and soot escaped into the second-story room, where the damaged goods were situated. When the trouble was discovered, the room was full of smoke and soot, and the ceiling where the pipe went through was very hot, and by reason of the smoke and soot, and of the water used in cooling the ceiling, the goods were damaged as here set out." Then followed in said proof of loss a statement of the other insurance on the same goods, together with a complete inventory of the goods damaged, with the amount of damage claimed thereon. To the introduction in evidence of this proof of loss the defendant objected, on the ground that in said proof of loss it is stated that the goods were injured simply by reason of the smoke and soot, and that there is no allegation in said proof of loss that there was any actual burning of anything except the material put in the stove purposely to burn, and that the said proof of loss did not show, or claim to show, that there was any loss or damage by fire under the terms of the policy. The court thereupon sustained the objection. Plaintiff's counsel then stated to the court that when said proof of loss was furnished, and for some months afterwards, it was not known to the plaintiff that there had been any actual burning, and they were prepared to show that in about three months after the injury to the goods the plastering on the ceiling of the second story room fell down, and disclosed the fact...