Farmers' Mut. Fire Ins. Co. Of Ga. v. Harris

• Decision Date: 02 November 1934
• Docket Number: No. 23833.,23833.
• Citation: 50 Ga.App. 75,177 S.E. 65
• Parties: FARMERS' MUT. FIRE INS. CO. OF GEORGIA. v. HARRIS.
• Court: Georgia Court of Appeals

50 Ga.App. 75

177 S.E. 65

FARMERS' MUT. FIRE INS. CO. OF GEORGIA.

v.HARRIS.

No. 23833.

Court of Appeals of Georgia,

Division No. 1.

Nov. 2, 1934.

Syllabus by the Court.

1. Where a person has issued to him two fire insurance policies in a mutual fire insurance association, one policy covering property on A place and the other covering property on B place, and where by a resolution, passed by the stockholders of such mutual company, all policies were to be rewritten and the policy on A place was rewritten and an application mailed to such person for the new policy on such place, a clause contained in the application, "All previous policies cancelled." will not be held, as a matter of law.to be a cancellation of the policy on B place. Held: A form circular letter written in connection with such new application, stating, "We enclose herewith new application covering property that you have insured in this company * * * and all policies outstanding will be cancelled, " is not, as a matter of law, sufficient notice of cancellation of the policy on the other place, none of which property was contained in the new application. The trial judge properly held it to be a question for the jury whether or not, under all the facts and circumstances of the case, actual notice (the policy not requiring that the notice be in writing) was brought home to the insured that the policy covering the property destroyed, which is here sued for, was canceled.

2. "In the absence of fraud or mistake, and where not otherwise limited by the policy, if the insured has an. insurable interest at the time the policy is obtained and also at the time of the loss he is entitled to recover the whole amount of the loss not exceeding the amount of the insurance, regardless of the nature or extent of his peculiar interest." 26 C. J. 358. The court therefore did not err in overruling the demurrer. This ruling renders harmless the error, if any, in the charge as to the barn being a trade fixture.

3. The evidence, while in sharp conflict, supports the verdict.

BROYLES, C. J., dissenting.

Error from Superior Court, Houston County; Malcolm D. Jones, Judge.

Suit by C. G. Harris against the Farmers' Mutual Fire Insurance Company of Georgia. Judgment for plaintiff, and defendant brings error.

Affirmed.

Duncan & Nunn, of Perry, for plaintiff in error.

A. M. Anderson and Robt. E. Brown, both of Perry, for defendant in error.

GUERRY, Judge.

C. G. Harris filed suit against the Farmers' Mutual Fire Insurance Company of Georgia, on a certain policy issued by it on December 3, 1931, covering certain property described therein, which it was claimed was destroyed by fire on December 2, 1932. The petition made substantially the following case: The defendant company is a mutual fire insurance company. No premiums are paid by the policyholders, but said company is operated by assessment of the members of the company of their proportionate part of the losses incurred by other members of the company. The plaintiff became a member of the Houston county division of the defendant company about 1918 or 1919, at which time he insured all his farm property located on two farms. On December 3, 1931, plaintiff entered into a written contract of fire insurance (the contract sued upon) with the defendant company insuring the property destroyed, together with other property of plaintiff, in the total sum of $2,850; said property being located on a farm designated as the "Sistrunk Place." The property destroyed and described in the policy was a crib house valued at $350, which crib contained farm implements and supplies, which was built by the plaintiff and located on the "Sistrunk Place, " which property was leased by plaintiff; the lease expiring January 1, 1933. The petition further alleged a full compliance on the part of the plaintiff with the terms of the policy, payment of all assessments, and lack of notification by the defendant of cancellation of the policy until a few days after the fire. By amendment to meet a special demurrer filed by the defendant, plaintiff attached to his petition a copy of the lease contract between him and Mrs. Wester of the property known as the "Sistrunk Place, " upon which the farm crib and contents that was destroyed were located. Defendant filed its answer denying liability and alleged: "Further answering said petition, defendant says that in the summer of 1932, several months prior to the alleged fire loss of plaintiff, the Houston County Division, by resolution of its board of directors, directed that all insurance risks of its members be reinspected, revalued and reapproved, and new and different policies be written. That the insurance of plaintiff, including the policy sued on, was cancelled and a new policy was written and delivered to plaintiff, in which none of the property claimed to have been lost by fire as alleged in the petition was included. That plaintiff had both oral and written notice that that insurance was cancelled and that none of the property embraced in the policy sued on would be included in the new policy issued to him. That plaintiff accepted the new policy with full knowledge that it embraced none of the property in the policy sued on; this acceptance of the new policy having been made by plaintiff several months prior to the alleged fire loss. That after the new policy was issued no assessments were ever levied or collected on the policy sued on, and plaintiff was fully aware at all times that he had no contract or policyof insurance with defendant on any of the properties claimed to have been lost by fire as alleged in the petition."

The evidence for the plaintiff shows the issuance of the policy sued upon on December 3, 1331, and the loss of the property by fire on December 2, 1932. The plaintiff denied that he ever received any notice of the meeting of the stockholders on June 8, 1932, and says that he had tvyo policies of insurance issued to him, one on property situated on what was known as the "Hose Place" and. the other on the "Sistrunk Place, " the place on which the loss occurred; that representatives of the company called on him some time in July, 1932; "they were appraising and rewriting all of the insurance." The buildings on the "Hose Place" were inspected by these agents. The plaintiff further testified: "I think the idea was to rewrite all the policies. I don't remember they told me they were rewriting all the insurance, but they said they were rewriting and reappraising the property.

* * * They delivered me a new policy for the 'Hose Place" some two or three months later." "I did not own the 'Sistrunk Place' and told them my lease was expiring and I did not know whether I would ran it again another year or not." The plaintiff denied that the agents of the company informed him, when they came around revaluing the property on the "Hose Place, " that the "Sistrunk Place" would be left off in the rewriting of the insurance, and testified: "Mr. Ramage did not tell me in the presence of Mr. Smith that they would not continue the insurance. He says, 'Mr. Smith, Mr. Tucker, and myself appraised and rewrote this policy last December when we adjusted the other fire.' He did not say the company would not continue the insurance on it. * * * He did not say he was going to accept it, * * * but said * * * he would go into that later." The defendant introduced a policy dated September 15, 1932, which insured only the property on the Hose Place and did not include the property destroyed by fire, December 3, 1932. The application for this insurance was signed by the plaintiff and dated on September 15. The application contained the following clause, written in as a part of the policy: "All previous policies cancelled." The plaintiff admitted the signing of such application, but denied that he had notice that such a clause was contained therein. The defendant also showed by evidence that at the time this application for insurance was mailed the plaintiff to be signed by him, some time prior to September 15, 1932, there was also inclosed in the envelope containing the application, which was signed and returned to it by plaintiff, the following letter: "We enclose herewith new application covering property that you have insured in this company. Mr. A. B. Ramage and Mr. G. W. Smith have reinspect-ed all property covered by this company and the enclosed schedule is the amount that your new policy will cover. The new policy will be issued as of date you sign the new application and all policies now outstanding will be cancelled. Please sign the enclosed application and mail at once to the company so that your new policy will not be delayed in reaching you. Don't fail to sign and return at once." The defendant also contended that after the fire the plaintiff brought this application and policy to it and that it contained such a letter, and such letter was the one sent to all of its policyholders with reference to the cancellation and rewriting of all their policies. The plaintiff denied receiving such a letter and swore that he had never seen it before the trial. He stated: "I never had any letter with the policy I brought to Mr. Andrews, not a copy of the one above referred to. I don't remember, but I don't think a copy of the above letter was folded in the policy I brought to Mr. Andrews; I am quite sure it was not there or I would have read it." The defendant further showed that there was a meeting of the stockholders on June 8, 1932, and the passage of a resolution with reference to the revaluation and rewriting of all the insurance in said company. A committee was appointed who inspected and reported on all the policyholders and their property. These agents, composing the committee, testified that they told the plaintiff, when they went to see him, that in view of the fact that his lease was expiring on the "Sistrunk Place, " they would leave off the property on this place, where the loss afterwards occurred; that after the...