Carrugi v. The Atl. Fire Ins. Co.

• Decision Date: 31 December 1869
• Citation: 40 Ga. 135
• Parties: JOHN CARRUGI, plaintiff in error. v. THE ATLANTIC FIRE INSURANCE COMPANY, defendant in error.
• Court: Georgia Supreme Court

40 Ga. 135

JOHN CARRUGI, plaintiff in error. v. THE ATLANTIC FIRE INSURANCE COMPANY, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, December Term, 1869.)

Insurance. Waiver by Agent. Pleading. New Trial. By Judge Johnson. Muscogee Superior Court. August, 1869.

Carrugi averred that the Atlantic Fire Insurance Company, of Brooklyn, New York, chartered by the laws of New York, and doing business, by an agent, in Columbus, Muscogee county, Georgia, owed him $5,000 00 and interest, because of a loss by fire; for that, on the 16th of January, 1866, in consideration of a premium paid to said agent, said company insured Carrugi's certain property, specified by a policy then delivered to him, upon the terms and conditions specified in said policy, for six months, at $5,000 00. By like payments of premiums said policy was renewed, the last renewal being for the term between the 16th of January, 1867, until the 16th of July of that *year. One of the conditions of said policy was, that in case of loss, the company would pay the then actual cash value of the insured prop-erty. Another was: "If any other insurance has been, or shall be hereafter, made upon said property, and not consented to by this company in writing, this policy shall be null and void." Before this last renewal, to-wit: on the first of January, 1867, he asked said agent for $5,000 00 of additional insurance; the agent said he would like to give it, but was not authorized to insure more than $5,000 00 on any property. Carrugi told the agent he would get the additional insurance in some other company, and the agent consented that he might do so, knowing that had he refused, Carrugi would, as he was allowed by his policy to do, have cancelled said policy, and received back part of the premium paid. This consent was a waiver of said quoted condition in said policy, or if not, equity would now compel the consent to be given in writing, if necessary, and therefore equity will consider it as already done. After this verbal assent of the agent, on the 4th of January, 1867, Carrugi obtained insurance for $5,000 00 on said property in other companies. On the 24th of March, 1867, the property was burnt. Carrugi made the preliminary proofs as required by another condition in said policy, and yet the defendant refused to pay said insurance.

This petition was served by leaving a copy of it with said agent. The defendant's counsel, at the first term, moved to dismiss the case, because, as they contended, said defendant was suable here only by attachment. This motion was overruled. They pleaded non est factum, that Carrugi's failure to give notice at the time of the last renewal of the other insurance, and having defendant's written consent thereto, avoided the policy; that it was avoided by a condition therein that if the assured should not own the property absolutely he should disclose his real interest, and have it expressed in the policy, which Carrugi did not do, though his interest in all of said insured property was not absolute; that he could not recover, because after making the original policy he had changed his interest *in it by mortgaging the property, and gave no notice thereof to defendant; that one of the conditions of said policy was, that "all fraud, or attempt at fraud, by false swearing or otherwise, shall cause a forfeiture of claim on this company under this policy, " and that Carrugi had falsely sworn, with intent to defraud defendant, by putting his aggregate loss at $14,307 39 in his preliminary proofs, and making up that amount by swearing therein that he had priced goods bought abroad at actual cost, where he priced them, with freight added, and his other property at its actual cash value when burnt; that if bound at all it should only pay its pro rata share of the actual loss.

Another condition of said policy was, that in case of loss the company might, if it pleased, replace the property in kind. On the trial there was much evidence pro and con as to the value of the property insured. Much of it was a stock of groceries and furniture, bedding, wearing apparel, etc. Carrugi, and members of his family, were shown a list, which they said they had made up from memory shortly after the fire, and some twenty months before the trial, and while testifying were asked if it was correct. For instance, his counsel would see on the list "Peach Brandy, " and would ask, "had plantiff any peach brandy?" Upon being answered "yes, " he would ask how much and of what value. As to value and quantity the answer was from the memory of the witness. This mode of examination was objected to, and the objection was overruled. He and his family, in this way, proved the specified articles, some remembering part of the articles and their value, but none pretending to recollect all.

Carrugi and his family testified to the consent of said agent for him to take out other insurance substantially as is set forth in the petition. (The agent swore he did not, nor would have made such consent.) Defendant's counsel objected to this testimony, upon the grounds that a verbal consent was not good, and that an agent could not make such consent. These objections were overruled. In provingvalues Carrugi put them at their retail prices; for instance, he put *cigars which cost $10000 at $200 00. This was objected to, but allowed by the Court. Pending the argument, plaintiff\'s counsel spoke of whatwould have been shown by certain interrogatories ruled out. Upon objection, the remark was withdrawn. Defendant\'s attorney, in his speech, said the amount claimed by Carrugi would buy a principality in Italy. Who is Carrugi? (He was an Italian.) In the reply of plaintiff\'s attorney, he said, "Who is the defendant? The name is enough. Who knows but Meade & Mills, and men who came here with Wilson\'s raid, compose this company."

Defendant's counsel requested the Court, in writing, to charge the jury that, the conditions of the policy were binding on Carrugi unless the Company had waived them; that in estimating loss they should find what it would cost to replace the goods in statu quo, and not their retail value, as that would include profits; that parol notice that he would get other insurance was insufficient under said quoted condition in the policy, nor would the parol agreement set out in the petition avoid that condition, but there must be actual notice of said other insurance having been obtained; that an agent can only bind the principal within the scope of his authority, and an agent of an insurance company has no implied authority to change its written contracts; he must have express authority. The Court refused so to charge. Besides these requests they also requested the Court, in writing, to charge the jury, that an attempt to defraud defendant by an over valuation of the property insured, by attempting to prove an over valuation of the property lost, avoided the policy. From the position of this request on the paper the Court overlooked it, and did not so charge. Whether he would have charged it, had he noticed it, does not appear. His attention was not called to it till after the verdict.

The Court charged the jury that if Carrugi had the agent's verbal consent to insure his property in other companies, that subsequent insurance did not work a forfeiture, although no notice of this additional insurance was given to the agent after it was made.

After the argument, but before the charge, the jury were *permitted to go to dinner, being enjoined not to make up any opinion till they had heard the charge of the Court, nor to converse with any one, or with each other, about the case One of Carrugi's counsel accidentally went out with the jury, and was walking between two of them. A citizen joined the three, and remarked, "These insurance companies are swindling concerns; I'm down on them." Nobody made any reply to this.

The jury found $4,625, principal, besides interest, for Carrugi. Defendant's counsel moved for a new trial upon the grounds, that the Court erred in permitting the witnesses examined by said list, as they were; in allowing evidence of the verbal assent of the agent for other insurance; in allowing proof of the retail prices of his goods; in refusing to charge as requested and in charging as he did; and becausethe said remarks by counsel in argument, and the remarks by a citizen, in hearing of two jurors, were calculated to prejudice the jury against the defendant, and because the verdict was against the weight of the evidence. Judge Johnson granted a new trial without stating upon what ground he put it. This is...