Morris v. Imperial Ins. Co. of London
| Decision Date | 11 February 1899 |
| Parties | MORRIS v. IMPERIAL INS. CO., Limited, OF LONDON. IMPERIAL INS. CO., Limited, OF LONDON v. MORRIS. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where, to a suit upon a policy of fire insurance, the defense is interposed that at the time the policy was taken out by the insured he was not the owner of the property thereby covered, the burden of satisfactorily establishing this contention rests upon the defendant, notwithstanding it may be incumbent upon the plaintiff, in order to make out a prima facie case, to show that the property in question, alleged to have been destroyed by fire, belonged to him at the time the same was burned.
2. An absolute and unconditional covenant of warranty by the insured of the truth of certain representations made by him in a written application for insurance is binding upon him irrespective of the question whether such representations were made in good faith or otherwise.
3. It being a vital issue in the case whether or not the insured had complied with a stipulation in the policy requiring him to keep a set of books clearly and plainly presenting a complete record of the business transacted by him, it was error not to admit in evidence a letter received by the company from his attorney, prior to the commencement of suit which tended to show that at the trial the insured had assumed a position apparently inconsistent with a statement made in this letter as to certain facts material to this issue. (a) Testimony as to the "usualness or unusualness" of a debtor himself keeping no books, but relying on a creditor to do so for him, was, however properly rejected, not being pertinent to the issue presented; and the same is true as to an observation by an expert witness, in commenting upon the manner in which the books of the insured were kept, that, though probably going "through fifty sets of books a year," the witness had "never seen anything of that sort before."
4. Though the agent who wrote the policy had at the time full information regarding the method of bookkeeping pursued by the insured, the mere fact that such agent then failed to raise any objection thereto would not amount to a waiver by the company of its right to insist that the insured should comply with his express covenant, entered into when he accepted the policy, to thereafter keep such a set of books as was therein specified; nor, under such circumstances, would the company be estopped from setting up the defense that the insured had failed to comply with his covenant, if, upon being called upon to indemnify him for a loss, this fact came to the knowledge of the company.
5. It does not follow that, because evidence introduced in behalf of a plaintiff be strong enough to withstand a motion for a nonsuit, it is not within the power of the trial judge, if dissatisfied with a verdict based upon such evidence, to grant the losing party a new trial. Certainly it is true that a judgment sustaining a motion for a new trial, though based specifically upon a single ground thereof, whether meritorious or not, should not be set aside, if it affirmatively appears that, for any reason assigned by the movant in other grounds of his motion, it would have been reversible error to overrule the same.
6. Under the facts of the present case, the court was not authorized to give in charge to the jury any instructions whatsoever with regard to the assessment of damages and attorney's fees against the defendant company.
7. The defendant having failed to establish its contention that the insured, in computing his loss, had endeavored to perpetrate a fraud upon the defendant, the trial judge properly refused to submit this defense to the jury; nor was any error committed in rejecting a memorandum, alleged to have been made by an expert bookkeeper, which was offered by the defendant as "documentary evidence" in support of its contention that the proofs of loss submitted by the insured were unreliable and incorrect.
Error from superior court, Sumter county; W. N. Spence, Judge.
Action by Joseph Morris against the Imperial Insurance Company, Limited, of London. There was a verdict for plaintiff, and a new trial was granted, and plaintiff and defendant bring error and cross error, respectively. Affirmed on the main bill of exceptions. Reversed on the cross bill.
Allen Fort, Du Pont Guerry, and E. A. Hawkins, for plaintiff.
Glenn, Slaton & Phillips and Hooper & Crisp, for defendant.
Suit was instituted by Joseph Morris against the Imperial Insurance Company, Limited, of London, upon a policy of insurance covering his stock of merchandise, which had been wholly destroyed by fire. A verdict was returned in his favor, and the defendant company moved for a new trial, which was granted; the court being of the opinion that as to one branch of the case the finding of the jury was not warranted by the evidence. The defendant's motion contained various grounds, presenting special assignments of error, but each of these was specifically overruled. Neither of the contending parties being satisfied with the direction thus given to the case, the plaintiff brings here his writ of error, complaining of the grant of a new trial on the ground upon which the court based its action, whereas the movant, by cross bill of exceptions, as confidently asserts that error was committed in not sustaining each of the several other grounds upon which it relied. The whole case as made by the defendant's motion is therefore before us for review.
1. Little difficulty has been encountered in disposing of the first question presented for determination. It appears that one of the defenses relied on at the trial was that the stock of goods destroyed by fire was not, at the date upon which the policy was issued, the property of the plaintiff, but really belonged to his brother, Samuel Morris, and accordingly, under the terms of the policy, the plaintiff could not sustain his action. In this connection, the court instructed the jury that the burden of proof was upon the company to establish its contention, and this charge is complained of as error, upon the idea that, in order to show individual loss, it necessarily was incumbent upon the plaintiff to prove his ownership of the property insured. It is true that the plaintiff had to successfully meet the burden of making out at least a prima facie case as to every material allegation upon which he relied for a recovery; but it by no means follows that, in addition to this burden, common alike to all suitors upon whom rests the onus of establishing their complaints, it was incumbent upon him to go further; and negative the several defenses interposed to his action. On the contrary, it is an inflexible rule of practice that, as to all matters purely of defense, the burden of proof is cast upon the defendant. The present case offers no reason why any exception should be made to this rule. It was only incumbent upon plaintiff, in order to make out a prima facie case in this respect, to show possession, coupled with a bona fide claim of right to the goods in question; for satisfactory proof of these facts would doubtless raise in his behalf a presumption of ownership calling for positive evidence to the contrary on the part of the company. At any rate, in order to establish his alleged loss or damage by fire, it was not essential that he should do more than prove the goods burned belonged to him at the time of their destruction; i. e. the date of the fire.
2. The written application for insurance, upon which the policy sued on was issued, contained a covenant on the part of the insured that the statements made by him in reply to the several questions therein propounded concerning the nature of the risk, etc., were true, and were thereby "made the basis and a condition of this insurance, and a warranty on the part of the insured." To the question, "Has the company canceled or refused insurance on the property?" the applicant appears to have answered, "No." On the trial, the company sought to show this statement was untrue; and upon the issue thus presented the court charged the jury: "The defendant must not only show that the plaintiff has been refused insurance,--his application for insurance has been turned down previously to the insurance of this policy by the company,--but you must be satisfied by the testimony that there was a willful misrepresentation in the case, and you must find, also, that the plaintiff understood that he made that warranty." The vice of this charge, as is pointed out by the exception thereto interposed by the company, is that it lays down the rule that the misrepresentation made must be shown to have been willful, whereas the insured expressly covenanted that his representations, as made in his application for insurance, should become warranties. It is one thing to stipulate that an insurance policy shall not be binding upon the company in the event the insured has knowingly misrepresented material facts, and quite a different thing, from a legal stand-point, at least, to absolutely warrant as true the representations made by him in order to procure the policy. One who, in good faith or otherwise, makes an absolute warranty, does so at his peril; for, in the event of a breach thereof, the party with whom he contracts is legally entitled to hold him strictly to his covenant. As well might the test laid down by the trial judge be applied to the vendor of goods, who sells with an express warranty as to quality, as to the buyer of insurance, who gives to a dealer therein a warranty without which the latter would not sell.
What is said above applies with equal force to another charge of the court, to which exception is taken, wherein...
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