Lumbermen's Underwriting Alliance v. Jessup, 37726
| Decision Date | 24 September 1959 |
| Docket Number | No. 1,No. 37726,37726,1 |
| Citation | 112 S.E.2d 337,100 Ga.App. 518 |
| Parties | LUMBERMEN'S UNDERWRITING ALLIANCE v. W. L. JESSUP, Jr., et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Where the trial court sustains any or all demurrers to a pleading, and allows time for the filing of an amendment, such judgment or order shall not be subject to exception or review.
2. The evidence authorized the verdict, and as none of the 38 special grounds of the motion for new trial is meritorious, as is illustrated by the attached opinion, the trial court did not err in overruling such motion as finally amended. This is the second appearance of this case in this court (see Lumbermen's Underwriting Alliance v. Jessup, 98 Ga.App. 305, 105 S.E.2d 596) and is a companion case to the second appearance of the case of Lumbermen's Underwriting Alliance v. First Nat. Bank & Trust Co., 98 Ga.App. 289, 105 S.E.2d 585. On the former appeal of the present case, this court, ruling solely on the demurrers to the petition, held this case to be controlled by the companion case, and did not set forth the pleadings. In view of the multiplicity of questions posed by the present appeal we believe that an understanding of the rulings to be made will be facilitated by setting forth the pleadings and by recounting the events which have occurred in the case prior to the present appeal.
On March 28, 1958, W. L. Jessup, Jr., doing business as Brooks-Jessup Lumber Company, and The First National Bank & Trust Company of Macon, a national banking association, instituted the present action against Lumbermen's Underwriting Alliance. As finally amended, the plaintiffs allege substantially the following facts in their petition: (1) The defendant is a voluntary association with no fewer than one thousand members or subscribers who are individuals, partnerships, and corporations, being citizens of no fewer than thirty states in the United States, including the State of Georgia. (2) The defendant is a reciprocal or interinsurance exchange whereunder the members or subscribers contract among themselves through an attorney in fact to insure each other against loss by fire. (3) The defendant was, during the years 1956 and 1957, and is now, authorized to transact business within the State of Georgia, and on the date of loss hereinafter set out, the defendant had an agent, to wit, Truman S. Dennett, who was a resident of Laurens County, Georgia. (4) On October 22, 1956, the defendant issued to the plaintiff Jessup a standard fire insurance policy (No. 29122) with an endorsement thereon naming The First National Bank & Trust Company in Macon as payee as its interest might appear, insuring the plaintiffs against loss by fire of a stock of lumber. A copy of the policy, together with the material endorsements annexed to the policy is attached to, and made a part of, the petition. (5) The policy was in full force and effect on September 4, 1957. (5a) On September 4, 1957, 1,778,308 board feet of the stock of lumber insured under the policy was destroyed by fire. The value of the lumber so destroyed and the amount of the plaintiffs' loss is $167,726.15, as is shown by an itemized schedule attached to, and made a part of, the petition showing the type, character, grade, size, and value of the lumber at the time of loss. This schedule also lists the lumber on hand at the time of the fire, which was not destroyed, and shows the particular description, character, grade, size, and value thereof in detail, less the necessary expense of drying, dressing, and resawing such items to which further processing would be applicable. The aggregate quantity of lumber on hand at the time of the fire was 2,015,933 board feet of the aggregate value of $187,954.16. (6) On October 7, 1957, the plaintiff Jessup furnished the defendant proof of loss for himself and The First National Bank & Trust Company in Macon. A copy of such proof of loss is attached to, and made a part of, the petition. Accompanying such proof of loss was a letter from the plaintiff to the defendant a copy of which is attached to and made a part of the petition and which reads as follows:
'Fire Loss 9/4/57
'Gentlemen:
'Kindly refer to our letter of September 24th wherein we confirm our telegram to you of Sept. 5th advising you of fire loss suffered at our lumber yard during the early morning hours of September 4th, receipt of which you acknowledged in your letter of September 6th.
'In order to comply with our portion of the obligations as set forth in your policy, we are attaching sworn statements of proof of loss, outlining all pertinent fact as required in your contract.
'In event this sworn statement of proof of loss is not in full compliance with our obligations pursuant to your policy, we ask that you advise us immediately exactly in what particular it fails to do so and we will endeavor to furnish you any further information necessary.
'May we invite your splendid cooperation in this matter as has been in evidence in other pleasant transactions.
'Yours very truly,
'Brooks-Jessup Lumber Company
'By:
'W. L. Jessup, Jr.
'WKJ:mls
'CC Continental Associated Adjusters
'Kansas City, Mo.
'CC First National Bank & Trust Co.'
(7) On November 13, 1957, the defendant made a lump sum offer of $150,000 in compromise of not only the settlement of lumber loss but the plant loss insured under another policy (No. 41911) covering plant loss of $16,100. The offer was not a bona fide offer made through any effort to ascertain and pay the amount of the loss, but was made in an effort to coerce the plaintiff Jessup to accept substantially less than the amount of his loss. This offer was immediately withdrawn when the plaintiffs did not accept it. (7a) At the time the $150,000 offer was made, there was no contention made by the defendant then or prior thereto that the plaintiff Jessup had not actually suffered a loss of $183,826.15 or any amount less than that sum, of that the plaintiffs were not entitled to recover that sum under the policies. The defendant assigned no fact or reason why it should not pay the amount of $183,826.15. (8) Thereafter, by letter dated December 5, 1957, the defendant, through its manager, J. J. Abreo, wrote the plaintiff Jessup the following letter:
'Re: Lumbermen's Underwriting Alliance of Kansas City, Missouri
'Policy No. 29122 and 41911
'Dear Mr. Jessup:
'(a) Your said examination under oath discloses that neither of said proofs correctly reflects the interest of the named insured in the property described in the policies.
'(b) Your said examination under oath discloses that neither of said proofs correctly reflects the actual cash value of the property described in the policies at the time of the loss.
'(c) Your said examination under oath discloses that neither of said proofs correctly reflects the whole loss and damage to the property described in said policies.
'(d) Your said examination under oath discloses that neither of said proofs justifies the amount claimed thereunder.
'(e) Your said examination under oath discloses that both before and after the fire loss of September 4, 1957, the insured had wilfully concealed material facts and circumstances concerning the subject of said insurance and the interest of the insured therein.
'Very respectfully yours,
'Lumbermen's Underwriting Alliliance of Kansas City, Missouri.
'By: Continental Associated Adjusters
'J. J. Abreo, Manager.
'Eastman, Georgia.
'Senior Vice-President.'
(9) The plaintiffs allege that this compromise offer of $133,000 was not a bona fide offer in settlement of the loss sustained by the plaintiffs, as the loss included not only the lumber loss but the plant loss, while the amount of the offer represented the approximate indebtedness of the plaintiff Jessup to the plaintiff First National Bank & Trust Company. (9a) At the time the offer of $133,000 was made, there was no contention by the defendant then or prior thereto that the plaintiff Jessup had not actually suffered a loss of $183,826.15 or that the plaintiffs were not entitled to recover that sum under the policies. The statements made in the defendant's letter of December 5, 1957, were not made in good faith by the defendant and the defendant did not in truth believe the statements contained in the letter and assigned as reasons for not owing the loss in its entirety. (10) The plaintiffs have fully complied with all the conditions of the policy. (11) After receipt of the defendant's letter of December 5, 1957, the plaintiffs made written demand on the defendant for payment of the aforesaid loss and the defendant is notified to have and produce such demand on the trial of the case. (12) The defendant's refusal to pay the loss was in bad faith. (13) As a result of the defendant's conduct, ...
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