Lippman v. Aetna Ins. Co.
| Decision Date | 14 May 1904 |
| Citation | 47 S.E. 593,120 Ga. 247 |
| Parties | LIPPMAN v. AETNA INS. CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Answers to suits in the city court of Savannah must be filed on or before the first day of the return term.
2. Where a demurrer and answer to a petition are filed too late but, instead of moving to strike because not filed in time the plaintiff invokes the judgment of the court on the demurrer, and amends the petition to conform to its judgment it is too late, at a subsequent term of the court, to move to strike the demurrer and answer because not filed in time.
3. A material amendment to a petition opens the case, if in default, for answer by the defendant.
4. A forfeiture of a contract of insurance cannot be waived by a local agent of an insurance company, without express authority from the governing officials of the insurance company.
Error from City Court of Savannah; T. M. Norwood, Judge.
Action by Mrs. Emma Lippman against the Aetna Insurance Company. From a judgment for defendant, plaintiff brings error. Affirmed.
Saussy & Saussy, for plaintiff in error.
Adams & Adams, for defendant in error.
Mrs. Emma. Lippman filed her suit against the Aetna Insurance Company of Hartford, Conn., returnable to the May term, 1902, of the city court of Savannah. The first day of the May term was the fifth day of the month, and on that day counsel for the defendant had their names marked on the judge's docket as attorneys for the defendant, and on the following Monday, which was the second Monday of the term, filed its demurrer and plea under the rules of the court. The grounds of the demurrer were: (1) That no copy of the contract of insurance sued on was incorporated in or attached to the petition, nor did the petition purport to set forth a copy of what appears written or printed upon the face or in the body of the policy sued on; (2) that paragraph 8 of the petition failed to state wherein the defendant had acted in bad faith, or had been stubbornly litigious, so as to be responsible for counsel fees. Nothing further was done in the case until April 18, 1903, when the demurrer was heard and sustained, and plaintiff allowed 10 days to file an amendment containing or having attached thereto a copy of everything appearing on the face or in the body of the policy, including all the stipulations embraced in that portion of the same above the signatures of the company's officers by whom it was executed. On April 22, 1903, plaintiff complied with the terms of the order sustaining the demurrer, and amended her petition by attaching a copy of the policy of insurance. Whereupon, on May 4, 1903, the defendant amended its original plea, denying liability to the plaintiff because, in and by its policy of insurance, it was stipulated that, unless otherwise provided by agreement indorsed thereon or added thereto, the same should be void if the insured, at the time of effecting the insurance, had or should thereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by said policy; that, when the policy was taken out, the insured had two policies of insurance on the said property, one in favor of the Hartford Fire Insurance Company, issued November 17, 1899, for $2,500, and another in favor of the Liverpool, London & Globe Insurance Company, issued on the said November 17, 1899, for $1,000; that no agreement was indorsed on the policy, or added thereto, as to the said previous insurance, which existed on the said property at the time of the fire; and that, by reason thereof, the covenants and conditions of this policy of insurance were and are broken, and the plaintiff is not entitled to recover any sum whatever. On December 7, 1903, by her written motion previously filed on August 26, 1903, plaintiff moved to strike defendant's demurrer, plea, and answer, and to enter up a default in the case nunc pro tunc, on the grounds: (1) That the plaintiff filed her petition against the defendant, and the same was duly served, returnable to the May term, 1902, of the court; that the first day of the May term, 1902, of the court was May 5th of said year, and on said day the defendant was not represented by counsel, nor had it filed any demurrer, plea, or answer to the petition; that afterwards defendant employed counsel, who on May 12, 1902, filed a demurrer, plea, and answer, but that the employment of counsel and the filing of the said demurrer, plea, and answer were too late, as the city court of Savannah under its constitution is a court in which cases are triable at the first term, and all pleadings and defenses and entries of appearance are required by law to be made on the first day of the term, and upon failure thereof default should be entered; (2) that defendant did not employ the counsel whose names are entered on the docket, and who filed said defense, until after the first day of the term had passed, which fact was unknown to plaintiff until the present term of the court and within the last few days. The judge heard evidence on the issues of fact raised by this motion to strike. The evidence submitted was sufficient to sustain the finding that counsel was employed on the first day of the term, and had authority to appear on that day and make answer for the company. The motion was overruled, and the case proceeded to trial. Error is assigned on the judgment refusing to sustain plaintiff's motion to strike the company's defenses.
1. The law applicable to the filing of answers in the city court (Code 1882, § 4926) provides that: It is further provided, in section 4983 of the Code of 1882, that: "The judge of said court may make rules of practice for the same, not in conflict with the general laws of the state; and, in all cases of fees to officers where such general laws do not strictly apply, he may, by rule or order of court, fix such fees by analogy to the general law." The following rules of practice were adopted by the court at the February term, 1899, on the authority of the last-quoted section: "Except new cases and those assigned under rule three, all cases called on the first day shall be subject to assignment for trial." "New c...
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