North British & Mercantile Ins. Co. v. Parnell
| Docket Number | 24734,24741. |
| Decision Date | 31 March 1936 |
| Citation | 185 S.E. 122,53 Ga.App. 178 |
| Parties | NORTH BRITISH & MERCANTILE INS. CO. v. PARNELL. PARNELL v. NORTH BRITISH & MERCANTILE INS. CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. In a suit on a fire insurance policy, where sufficient facts are set forth which in law make a case of liability against the insurer and, by allegations of compliance with preliminary requirements, such as furnishing a proof of loss to the insurer, thus disclose a duty on the part of the insurer to pay the loss, and it is further alleged that a timely demand was made on the insurer by the insured, and the refusal of the insurer within 60 days thereafter to compensate for the loss sustained, the pleader may allege that the refusal was in "bad faith" and that the defendant is therefore subject to a penalty provided by law without subjecting this allegation to the complaint urged by special demurrer that it is a mere conclusion of the pleader. This is true even though the insured does not allege that the insurer gave no reason for its refusal of the claim. The remaining special demurrers are without merit and need not be specially mentioned.
2. A compromise verdict is one "which is reached only by the surrender of conscientious convictions on one material issue by some jurors in return for a relinquishment of matters in their like settled opinion on another issue, and the result is one which does not hold the approval of the entire panel." In a suit on a fire insurance contract where the petition as finally amended alleged the value of the property to be $4,000, which was denied by the defendant, and no admission was made in the evidence by the defendant that the property was of the value of $2,000 (the principal sum of the insurance contract), and there was evidence before the jury as to the location of the property and its character, a verdict found by the jury in favor of the plaintiff for $1,400 cannot be said to be a compromise verdict.
3. Where the plaintiff admitted in her petition as amended the existence of a security deed on the property insured, in violation of the expressed terms of the contract, and pleaded a waiver by the insurer in that it had notice of such security deed, it was error for the judge, in charging the jury on the burden of proof, to place on the defendant the burden of (1) proving that it had no notice, or (2) disproving the evidence of plaintiff as to notice. The charge in this case was subject to this construction and was confusing as upon whom the burden of proof lay, and was therefore error.
4. A charge is not erroneous as tending to deprive the defendant of one of its defenses where it is clear from the charge as a whole that the judge plainly and distinctly gave the defendant the benefit of this defense, and the jury must have so understood.
5. A charge that "the plaintiff seeks to recover the sum of $2,000 * * * you may allow the plaintiff-if you see fit to allow anything-whatever amount you consider that the evidence shows that she is entitled to recover," was not subject to the exception that it instructed the jury to make a compromise verdict for any sum they saw fit to find.
6. Because of the grant of a new trial for the reason stated in headnote 3, those exceptions by defendant to the verdict of the jury finding $300 as attorney's fees, (1) because there was no evidence to support the same, (2) because the jury found a substantially less amount due than claimed by the plaintiff, are not passed on.
Error from City Court of Albany; Clayton Jones, Judge.
Suit by Mrs. David I. Parnell against the North British & Mercantile Insurance Company. To review the judgment, defendant brings error, and plaintiff files a cross-bill of exceptions.
Reversed on the main bill of exceptions, and affirmed on the cross-bill.
L. A Peacock and Bennet & Peacock, all of Albany, for plaintiff in error.
E. L Smith, of Albany, for defendant in error.
On December 18, 1933, Mrs. David I. Parnell instituted this action in the city court of Albany against North British & Mercantile Insurance Company. The action was founded on a contract of fire insurance upon a certain house in the principal amount of $2,000, issued originally by defendant to the estate of Mrs. Celem Crawford in August, 1932, and by proper indorsement transferred to plaintiff on January 18 1933. The plaintiff's petition alleged the destruction of the property insured by fire some time during 1933, and prayed for a judgment in the sum of $2,000, plus a penalty of 25 per cent., plus interest and attorney's fees. The defendant filed demurrers, both general and special, and an answer.
The answer, after denying the material allegations of the petition, set out the following reasons why the plaintiff should not prevail: (1) That the contract of insurance sued on, originally issued by the defendant to the estate of Mrs. Celem Crawford, recited that "this insurance is effective subject to the following conditions and those printed on the third page of this policy and are hereby made warranties by the assured and are accepted as a part of this contract"; that among the "conditions * * * on the third page" of the contract were the following: "This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto shall be void * * * if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple * * * or if any change, other than by the death of an insured, takes place in the interest, title or possession of the subject of the insurance (except change of occupants without increase of hazard) whether by legal process or judgment or by voluntary act of the insured, or otherwise," and that this condition of the policy was breached as follows: On September 6, 1932, after the will of Mrs. Celem Crawford had been duly probated, and after Mrs. David I. Parnell (plaintiff) and C. I. Parnell had duly qualified as executors under said will, they did, pursuant to the powers granted them under said will as executors, and individually, execute and deliver to S. B. Lippett as trustee a security deed, conveying the property covered by the contract of insurance to secure certain named indebtedness of Mrs. Celem Crawford; this security deed being duly witnessed and recorded on September 12, 1933, and being still outstanding at the time the property insured was destroyed by fire. (2) That the contract of insurance contained the further condition on page 3 as follows: "The insured, as often as required, shall exhibit to any person designated by this company all that remains of any property herein described, and submit to examination under oath by any person named by this company, and subscribe the same"; that on January 8, 1933, the policy was actually and properly indorsed to Mrs. David I. Parnell, so that Mrs. Parnell was the person named as the assured in the policy at the time the property insured was destroyed by fire; that under this provision she was required by the defendant to submit to examination, and she did actually appear and submit to examination under oath, but, after the questions were put to her and her answers were correctly transcribed and after she had read them and admitted their correctness, she failed and refused to subscribe the same and continuously refused to do so.
The plaintiff amended her petition, admitting the giving of the security deed, but further alleged that no forfeiture of the policy should result, for the reason that at the time the policy was indorsed to the plaintiff she notified the defendant, by notifying its agent who issued said policy, P. M. Lancaster, Sylvester, Ga., of the fact that said security deed had been executed, etc.
1. The plaintiff's petition as amended alleged that: The defendant filed a special demurrer to this paragraph which was in substance that the allegations were "mere conclusions of the pleader without any facts alleged to sustain the same."
We do not question the principle that mere conclusions of law and conclusions of fact have no place in good pleading. It is true, however, that in presenting a complaint to a court a petitioner must make use of legitimate conclusions of fact and general conclusions of law. A petition is the specification in methodical and legal form of the circumstances constituting the plaintiff's cause of action, and in stating these circumstances it is not sufficient to state mere conclusions of law nor to state the result of facts arising from circumstances not set forth therein. In considering whether or not a particular allegation in a petition is subject to a special demurrer attacking it as a conclusion of the pleader, it is permissible and proper for the court to consider in connection therewith all other facts alleged in the petition. Western & Atlantic R. Co. v. Roberts, 144 Ga. 250 86 S.E. 933; Lemon v. Lemon, 141 Ga. 448, 81 S.E. 118. Our statute (Code...
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