Morris v. Orient Ins. Co. of Hartford, Conn.

• Decision Date: 11 February 1899
• Parties: MORRIS v. ORIENT INS. CO. OF HARTFORD, CONN. ORIENT INS. CO. OF HARTFORD, CONN., v. MORRIS.
• Court: Georgia Supreme Court

33 S.E. 430

106 Ga. 472

MORRIS v. ORIENT INS. CO. OF HARTFORD, CONN.

ORIENT INS. CO. OF HARTFORD, CONN., v. MORRIS.

Supreme Court of Georgia

February 11, 1899

Syllabus by the Court.

1. In no view of the facts and circumstances brought to light upon the trial of this case can it be fairly said either that the defendant insurance company waived, or that it was estopped to set up in its defense, a violation of an express stipulation in the policy issued to the insured to the effect that the same should become void in the event he should thereafter, without first procuring the company's written consent to be indorsed upon or attached to the policy, take out additional insurance covering in whole or in part the same risk. This being so, the trial judge erred in instructing the jury, in substance, that, should they believe the testimony relied on by the plaintiff in this connection it would be their duty to find against this particular defense interposed by the company.

2. Further error was committed in eliminating from the consideration of the jury the additional defense set up by the defendant, that, at the time the policy sued on was issued to the insured, he was not the owner of the property therein specified.

3. As to all other questions raised by the company's motion for a new trial, this case is controlled by the decision this day rendered in Morris v. Insurance Co. (Ga.) 32 S.E 595.

Error from superior court, Sumter county; W. N. Spence, Judge.

Action by Jos. Morris against the Orient Insurance Company of Hartford, Conn. Judgment for plaintiff, and both parties bring error. Judgment on main bill of exceptions affirmed; on cross bill, reversed.

Allen Fort, E. A. Hawkins, and Du Pont Guerry, for plaintiff.

Glenn Slaton & Phillips and Hooper & Crisp, for defendant.

FISH J.

This case, which makes its appearance here by both a main and cross bill of exceptions, and that of Morris v. Insurance Co. (Ga.) 32 S.E. 595, were, by agreement of counsel, consolidated and tried together in the lower court, as in many respects the issues presented for determination were common alike to both. Upon reaching this court on separate writs of error, they were, by like consent, argued together. For convenience, however, it has been deemed proper by us to deal with them in separate opinions. In the opinion above referred to as having been filed in the Imperial Company's case, all the questions presented by the record now under consideration are fully covered, with the exception of the two herein specifically dealt with, which arose only in the case against the Orient Company.

1. The policy issued by this company contained a stipulation to the effect that, unless otherwise provided by an agreement indorsed upon or added to the policy, it should become void in the event the insured should procure any additional insurance upon the property covered thereby, in whole or in part. The insured did subsequently procure the Imperial Company to issue to him another policy, covering the identical stock of goods which the Orient Company had already insured, and this fact was set up in defense to the action filed against the latter company. In reply it was asserted by the plaintiff that the defendant had waived its right to insist upon this stipulation; having, through its agent expressly consented that the insured might, if he increased his stock later on, take out sufficient additional insurance to protect him. In support of this contention, Samuel Morris, a brother of the insured, who had in the latter's behalf conducted the correspondence with the company's agent whereby the insurance was effected, was introduced as a witness. Over the defendant's objection, counsel for the plaintiff was permitted to put to this witness the inquiry: "At the time you got this policy that is now issued, did you write Mr. Cobb, or have anything in the letter, about getting other insurance on that stock when you increased your stock of goods in the fall? What notice did you give him of your intention to take other insurance or other policies?" To this question the witness replied: "I wrote him, if he would give me a policy as cheap as possible in the fall, when he [the insured] increased his stock, I would give him [the agent] more, and he answered me that he would be glad to have it." This occurred in August, concurrently with the issuance of the policy. We do not think this testimony can be justly regarded as having the effect claimed for it by the plaintiff. In our opinion, it falls far short of proving the waiver sought to be shown. Nor is any material strength added thereto by the additional somewhat incoherent statement made subsequently by the witness in the course of his examination, as follows: "I gave Mr. Cobb notice at the time of effecting this policy sued on that Joseph Morris intended to take other insurance on that stock. I wrote him that in the fall I was going to take more insurance,--when my brother will have more stock; I will give him more insurance on that stock; and he answered that he would be glad to have it." The proposition submitted to the agent seems to have been simply that, on the stock being increased in the fall, his company, through him, would be asked to issue additional insurance; and the reply of the agent cannot be tortured into an express or implied consent that the insured might apply for and obtain additional insurance from any other company he chose to select, without consulting the defendant's agent as to the amount of concurrent insurance which would be permitted in view of the increased value of the stock of goods which the insured expected to have on hand later on. Evidently the agent intended merely to convey the impression that, if called upon at the proper season, he would grant additional insurance to such an extent as in his judgment the increased value of the stock then on hand justified; and the insured was not warranted in placing any other construction upon the agent's reply, especially as it was not hinted in the proposition submitted to him that the insured intended, without further consulting such agent, to take additional insurance in an entirely different company not represented by him. Besides, the policy issued by the defendant company expressly stipulated that its assent to concurrent insurance should be evidenced by a writing indorsed upon or attached to the policy itself. In this connection the case of Insurance Co. v. Thomas, 27 C.C.A. 42, 82 F. 406, is in point, it being therein ruled that: "Knowledge by the agent of an insurance company, at the time of procuring the insurance, that the insured intended to take out other insurance, does not operate as a waiver of a condition in the policy subsequently delivered, forbidding other insurance except by consent of the insurance company indorsed on the policy. The rule that a prior parol understanding or agreement cannot control a subsequent contract applies, and the waiver, to be effectual, must be subsequent to the written contract, and must be made, not only with knowledge of the other insurance, and with intent to waive the condition, but must be supported by a valuable consideration, or become operative by way of estoppel." Certainly there was no "waiver" in the present case; nor, in view of the facts above stated, can it fairly be said this is a case calling for the application of the doctrine of equitable...