Mechanics' & Traders' Ins. Co. of New Orleans v. Mutual Real-Estate & Bldg. Ass'n

• Decision Date: 30 March 1896
• Citation: 25 S.E. 457,98 Ga. 262
• Parties: MECHANICS' & TRADERS' INS. CO. OF NEW ORLEANS v. MUTUAL REAL-ESTATE & BUILDING ASS'N.
• Court: Georgia Supreme Court

25 S.E. 457

98 Ga. 262

MECHANICS' & TRADERS' INS. CO. OF NEW ORLEANS v. MUTUAL REAL-ESTATE & BUILDING ASS'N.

Supreme Court of Georgia

March 30, 1896

Syllabus by the Court.

1. Where a policy of fire insurance contained stipulations or conditions reciting that, unless such and such things were true, the policy was to be void, and the declaration in an action thereon showed affirmatively that one or more of these things was not true, it was demurrable, but was saved by an amendment alleging in substance that the company's agent by whom the policy was delivered to the insured knew at and before the time of making the delivery all the facts to which such stipulations or conditions related, and that consequently the company waived the benefit of the same. In such case it was, of course, incumbent upon the plaintiff to prove the waiver as alleged.

2. Where a general agent of an insurance company, by a writing duly executed and attached to a policy, continued it in force after the date originally fixed for its expiration, but extended credit to the insured for the payment of the renewal premium, and charged himself therewith, the renewal was as binding upon the company as if such premium had been paid to the agent in cash.

3. The defendant having filed a plea admitting its liability to the plaintiff on the policy sued upon in an amount stated, in which plea it averred that it had tendered this amount to the plaintiff before the action was brought, and also that "it was, at the time of said tender, and has been always since that time, ready to pay the sum aforesaid, and has said sum now in court to render to the plaintiff," and having supported this plea by introducing evidence showing that after the loss and before suit the company, upon a full and thorough investigation, deliberately, explicitly, and unconditionally admitted such liability and made such tender the jury were warranted in treating such plea and evidence as sufficient proof of the waiver alleged in the amendment to the declaration.

4. This being so, and the only remaining question at issue, under the evidence and the law applicable, being what was the value of the insurable interest of the insured in the property, and there being sufficient evidence to sustain the verdict as to amount, and it appearing that no material error was committed at the trial, and also that there has been a previous finding in favor of the plaintiff, who was the assignee of the insured, this court cannot undertake to say that the trial judge abused his discretion in refusing to grant a second new trial.

Error from city court of Richmond county; J. R. Lamar, Judge pro hac.

Action by the Mutual Real-Estate & Building Association against the Mechanics' & Traders' Insurance Company of New Orleans. From a judgment for plaintiff, defendant brings error. Affirmed.

F. H Miller, W. K. Miller, and Harrison & Peeples, for plaintiff in error.

J. S. & W. I. Davidson, for defendant in error.

SIMMONS C.J.

The Mutual Real-Estate & Building Association sued the Mechanics' & Traders' Insurance Company of New Orleans, alleging that the defendant was indebted to it in the sum of $1,875 upon a certain fire insurance policy. It appeared from the declaration that the policy was issued by the defendant on October 6, 1891, to P.J. Skinner, for $2,000, on property described as "his one-story frame shingle-roof dwelling house," located at a place named "in course of construction"; that Skinner was a contractor, and was erecting the building upon a lot belonging to the plaintiff, and under a contract with one Bigelow, who, upon the completion of the building, expected to receive from the plaintiff a bond for titles to the property, and to pay for the house by installments according to the method adopted by the plaintiff in providing for the purchase and building of homes for its patrons; that the policy was originally issued to expire December 5, 1891, and was renewed and extended in writing to January 6, 1892; that on December 13, 1891, the house, then almost completed, was totally destroyed by fire, from some cause unknown to the plaintiff or to Skinner; that the house was of the value of $2,500, and the loss total; and that on December 15, 1891, Skinner, the owner of the policy, being largely indebted to the plaintiff for money advanced to and used by him for the purchase of material, etc., in the building, transferred the policy to the petitioner in writing. The declaration also alleged that the requirements of the policy as to furnishing proof of loss, etc., had been complied with. The policy, a copy of which was attached to the declaration, stipulated that it should be void if the insured had concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning the insurance or the subject thereof, or if the interest of the insured in the property was not truly stated in the policy; and that the policy, unless otherwise provided by agreement indorsed thereon or added thereto, should be void if the interest of the insured was other than unconditional and sole ownership, or if the subject of the insurance was a building on ground not owned by the insured in fee simple. The defendant demurred generally to the declaration, as not setting forth a cause of action, and demurred also on special grounds, the main ground insisted upon being that the declaration did not show that the interest of the assured at the time of taking out the insurance was no other than unconditional and sole ownership of the property, and that the declaration showed on its face that the subject of the insurance was a building on ground not owned by the assured in fee simple. By an amendment to the declaration the plaintiff alleged...