National Fire Ins. Co. v. Banister
| Citation | 121 S.E.2d 46,104 Ga.App. 13 |
| Decision Date | 22 June 1961 |
| Docket Number | No. 2,No. 38899,38899,2 |
| Parties | NATIONAL FIRE INSURANCE COMPANY v. W. J. BANISTER |
| Court | United States Court of Appeals (Georgia) |
Bagwell & Hames, James A. Bagwell, Atlants, for plaintiff in error.
Walter O. Allanson, East Point, for defendant in error.
Syllabus Opinion by the Court
1. Pleadings are to be given a reasonable intendment, and a strained and unnatural construction will not be given them in order to raise an inference against the pleader. Where, as here, it appears that the plaintiff carried a policy of fire insurance on a described house and contents, an allegation as follows: '* * * defendant insured plaintiff for the period stated in said policy of insurance against loss by fire of the building and contents belonging to plaintiff; said building and contents owned by plaintiff and described in said policy being a brick veneer building with approved roof occupied as a grocery and filling station * * *', it appears obvious that the plaintiff intends to allege ownership of the building as well as the contents. A general demurrer on the ground that the petition fails to set forth a cause of action would not in any event reach such a defect even if it existed, for, as the defendant recognized, the petition would still state a cause of action for the personal property.
2. Where in a fire insurance policy containing the New York standard mortgage clause the proceeds in the event of loss are payable to the named insured and mortgagee as interest may appear, an allegation that the lien of the bank has been paid and that no person other than the insured has any interest in the property is not sufficient to excuse the plaintiff from joining such mortgagee as a party plaintiff, the action being in its nature a joint action. Georgia Casualty & Surety Co. v. Pincus, 89 Ga.App. 836(3), 81 S.E.2d 527; Firemen's Ins. Co. v. White, 181 Ga. 759, 184 S.E. 316. The defendant insurance company is entitled to the protection of having all parties named in the insurance policy joined as parties plaintiff in order that they may be bound by the judgment rendered. This may be done by amendment. Wallace v. Brannen, 56 Ga.App. 856, 193 S.E. 901.
3. A special demurrer, being itself a critic, must be perfect in form. To an allegation 'that plaintiff immediately made known to the defendant the fact of loss and destruction of said building and contents by fire, furnishing proof of said loss and the facts surrounding same' the defendant demurred on the grounds that the allegation was vague, indefinite and a conclusion 'there being no allegation * * * in the petition setting forth the contents of said proof of loss and the facts surrounding the same.' The demurrer does not raise the issue that the plaintiff did not file the proof of loss within the time limited in the policy. A statement that plaintiff furnished defendant a proof of loss is not a conclusion, and it...
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...and unnatural construction will not be given [pleadings] in order to raise an inference against the pleader.' National Fire Ins. Co. v. Banister, 104 Ga.App. 13, 121 S.E.2d 46. It is clear that the present petition, construed as a whole, alleges that the plaintiff was entitled to a commissi......
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