City Fire Ins. Co. Of Hartford v. Carrugi

• Decision Date: 31 January 1871
• Parties: CITY FIRE INSURANCE COMPANY OF HARTFORD, plaintiff in error. v. JOHN CARRUGI, defendant in error.
• Court: Georgia Supreme Court

41 Ga. 660

CITY FIRE INSURANCE COMPANY OF HARTFORD, plaintiff in error. v. JOHN CARRUGI, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1871.)

[COPYRIGHT MATERIAL OMITTED]

[COPYRIGHT MATERIAL OMITTED]

[COPYRIGHT MATERIAL OMITTED] Jurisdiction. Pleading. Evidence. Waiver. Before Judge Johnson. Muscogee Superior Court. May Term, 1870.

*Carrugi sued the City Fire Insurance Company of Hartford, Connecticut, as "a corporation existing by and under the laws of Connecticut, with power to insure against losses by fire, doing business in Columbus, Georgia, as an insurer against losses by fire, by its agent, Robert R. Murdock." He averred that on the 4th of January, 1867, he paid said agent $45 00 as premium and, in consideration thereof, the agent delivered to him a policy of said company, insuring him against loss by fire, for one year, for $1,000 00 on the furniture in the second story of the building described, and $2,000 00 on the stock of furniture and fixtures in the lower story; that on the 24th of March, 1867, said insured property was destroyed by fire; that, according to the requirements of said policy, he made proof of said loss and demand of payment, and payment was refused.

In his petition he also set forth the history of the matter in substance, thus: The day before this policy was taken out he applied to Murdock for insurance for $6,000 00, told him that Mr. Hill had already insured the same property for $5,000 00, took Murdock through the lower story and exhibited the stock, furniture and fixtures to him and offered to show him that up stairs, but Murdock would not go up, but said he would make the insurance for $6,000 00; that, on the next day, Murdock brought him the policy sued on and another, in another company, for the same amount, and explained that he had put it in two companies to divide the risk; read to him the written portions of said two policies, received the premiums on each and delivered them up to him; that trusting to Murdock's known integrity, he did not read the policies but, since the fire, has discovered that the policy sued on contains these words: "If the assured or any other person or persons interested shall have existing, during the continuance of this policy, any other contract or agreement for insurance (whether valid or not,) against loss or damage by fire on the property hereby insured, or any part thereof, not consented to by this company, in writing, andmentioned in. or endorsed upon this policy, then this insurance *shall be void and of no effect." He averred that the foregoing conduct of Murdock was a waiver of said condition, or if not, a fraud which vitiated said condition, and he prayed that the jury should pass upon that matter as if a bill were filed to get rid of the effect of said condition of the policy. The value of the lost property being averred, he prayed judgment for the face of the policy. Service was perfected by serving Murdock, the agent.

Carrugi also sued upon said other policy issued by Murdock, as agent of the Phoenix Insurance Company of Hartford, Connecticut, for the other $3,000 00 and, by consent, that suit was to abide the result of this one.

The defendant pleaded to the jurisdiction, because said defendant was, at and before the bringing of this suit, "a corporation resident of the State of Connecticut, existing under and by virtue of the laws of said State of Connecticut, and resident therein, and was not, at the commencement of said plaintiff's action, a citizen of, or resident within, the State of Georgia, " and that the defendant had not been served with the process. Upon demurrer, this plea was overruled. Defendant then pleaded the general issue, and defendant then pleaded—2d. "That said stock of furniture was not consumed, burnt, lost, or destroyed by fire in the manner and form as plaintiff hath alleged; and that by the making of said claim or demand upon defendant, said plaintiff hath attempted to defraud defendant by attempting to receive an amount largely in excess of his actual loss, whereby said policy, according to the provisions thereof, is void and null."

3d. "Plaintiff did not, according to the condition of said policy, as soon after the loss as possible deliver, as particular an account of their loss and damage, as the nature of the case would admit, and, in order to support his said claim, did, on the 22d of April, 1867, in the county of Muscogee, make a certain affidavit in support of said claim, and there was false swearing, with intent to defraud defendant, in violation of the provisions in the body of the policy contained, said plaintiff having then and there sworn that the amount annexed to said affidavit contained a true statement of his *loss by fire, and the whole amount of what he saved from the fire, and showing the amount of loss; that the values set down in the account are, in case of articles obtained at a distance from Columbus, to the best of his knowledge, information and belief, the prime cost of such articles, with the expense of transportation added; and, in the case of other articles, the ordinary selling price of said articles, in Columbus, amounting to an aggregate of $14,307 00 loss; whereas, said account did not contain a true statement of the said loss or damage, contrary to the body of said policy and the conditions of the same, whereby said plaintiff hath forfeited all claims on defendant."

4th. "At the time said insurance was made, defendant inquired of said plaintiff whether there was other insurance, or whether the property had been insured in any other office, and plaintiff failed to inform defendant of the fact, although at the time there existed other insurance, to-wit: on the furniture, $2,000 00 and on the merchandise and fixtures, $3,000 00, and that, had said information been given, defendant would not have made said policy."

The fifth plea reiterated the averments of the fourth and that Carrugi\'s failure to give notice of said prior insurance was such a fraudulent concealment as avoided the policy.

The sixth plea averred that, after said policy issued, Carrugi obtained other insurance on said property in the Atlantic Fire Insurance Company of Brooklyn, New York, without the knowledge or consent of defendant, and without having the same mentioned in writing in or on said policy, and thereby lost his rights under said policy according to its terms.

Before going into the trial, the Court ordered the said third plea to be stricken, upon which ground does not appear by the record. Plaintiff's counsel read in evidence the policy of defendant. It is in the usual form. It contained the following stipulations material to this cause. The company was not to be liable for musical instruments and certain other things named, "unless separately and specifically insured." "If the assured, or any other person or parties interested, *shall have existing, during the continuance of this policy, any other contract or agreement for insurance (whether valid or not) against loss or damage on the property hereby insured, or any part thereof, not consented to by this company, in writing, and mentioned in or endorsed upon this policy, then this insurance shall be void and of no effect. And in case any other contract or agreement for insurance (whether valid or not) against loss or damage by fire exists on the property hereby insured, or any part thereof, whether prior or subsequent to the date of this policy, the insured shall not, in case of loss or damage, be entitled to demand or recover of this company any greater portion of the loss and damage sustained than the amount hereby insured shall bear to the whole amount of such contracts or agreements for insurance." "Any interest in property insured not absolute, or that is less than a perfect title, must be specifically represented to the company and expressed in this policy, in writing, otherwise the insurance shall be void." Alienation of the property avoided the insurance, and it stated that "entry of a foreclosure of a mortgage or the levy of an execution shall be deemed an alienation of the property." In the clause specifying when and how the proof of loss was to be made, and what it should contain, and that the assured should be subject to examination, etc., was this condition: "If there appear any fraud or false swearing, the insured shall forfeit all claim tinder this policy." The company was not to be liable for more than the actual value of the property insured or what it would take to replace it, and the company was to have the right to replace at its option. Reinsurance for any other insurance company was to be on the basis of joint liability with said company, and in no event was the company to be liable for a sum greater than such portion as the sum thereby reinsured bears to the whole sum insured on the property by the company reinsured, and in case of loss, this company to pay their pro rata proportion, at the same time, manner and form, as the company reinsured. It concluded with the declaration that "this is policyis made and accepted upon the above express conditions." The written portion of *the policy was to the effect stated in the declaration; but it was nowhere written in or on said policy, that there was any other insurance on said property, or that defendant consented to such.

Mrs. Carrugi's interrogatories were read over the objection of defendant. She testified that the commissioners read over to her the bill of particulars of the goods lost or missed after the fire: that she could not read English at all, but that the commissioners—one of them acting as interpreter when she did not understand Engish —asked her as to each item; she thought the values were fair as affixed to this bill, and gave her means for knowing their value. She testified that her husband did tell Murdock before this policy was delivered, that Hill had already insured the property for $5,000 00, and that Murdock examined below...