Firemen's Ins. Co. v. Larsen

• Decision Date: 18 November 1935
• Docket Number: 24680.
• Citation: 182 S.E. 677,52 Ga.App. 140
• Parties: FIREMEN'S INS. CO. v. LARSEN.
• Court: Georgia Court of Appeals

182 S.E. 677

52 Ga.App. 140

FIREMEN'S INS. CO. v. LARSEN.

No. 24680.

Court of Appeals of Georgia, Second Division

November 18, 1935

Syllabus by Editorial Staff.

In suit against fire insurer for loss covered by three policies allowing insured to introduce testimony that one of other insurers had settled with insured for its proportion of loss held error.

In suit on fire policy, where insurer merely contested amount of damage claimed, reading by insured's counsel, from decision of Supreme Court, part of charge to grand jury criticizing and attacking practice of fire insurance companies in their methods of avoiding payment of losses held improper (Code 1933, § 81-1009).

Where amount of verdict assessing insurer's liability is substantially less than amount claimed in proofs of loss and sued for, verdict for attorney's fees and damages is unauthorized.

Error from Superior Court, Laurens County; J. L. Kent, Judge.

Suit by F. B. Larsen against the Firemen's Insurance Company. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Reversed.

Smith Smith & Bloodworth, of Atlanta, and Adams & Nelson, of Dublin, for plaintiff in error.

C. C Crockett, W. A. Dampier, and W. W. Larsen, Jr., all of Dublin, and C. S. Claxton, of Wrightsville, for defendant in error.

Syllabus OPINION.

SUTTON Judge.

1. This is an action on a fire insurance policy. Where the plaintiff's building is insured with three insurance companies, each contracting to pay one-third of whatever loss, not in excess of $3,000, that is suffered by the insured on account of fire, and where there is a fire and damage to the plaintiff's building, and the defendant denies that the damage thereto is as great as claimed by the plaintiff, but does not deny liability to pay its share of the loss actually sustained by the plaintiff, it was error to permit the plaintiff to introduce testimony that one of the other insurance companies had settled with the plaintiff for its proportion of the loss involved. Admissions or propositions made with a view of compromise, or in settlement, are not admissible for or against either litigant, if there is a failure to adjust and a suit follows. "For a much stronger reason, evidence of a settlement with a third person injured in the same casualty ought to be excluded." Georgia R. & Elec. Co. v. Wallace & Co., 122 Ga. 547(2), 50 S.E. 478, 480; City of Atlanta v. Gore, 47 Ga.App. 70, 76(12), 169 S.E. 776; Wigmore on Evidence (1934 Supp., 2d Ed.) § 1061, p. 460. See, also, Cosmopolitan Fire Ins. Co. v. Gingold, 3 Ala.App. 537, 57 So. 266, 267, where it was held that "in an action by the assignee of a claim under a fire insurance policy, evidence as to whether other companies, having policies covering the same property, had paid claims under those policies, is inadmissible."

2. "Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence it is the duty of the court to interpose and prevent the same; and, on objection made, he shall also rebuke the counsel, and by all needful and proper instructions to...