Phenix Ins. Co. Op Brooklyn v. Searles

• Decision Date: 26 February 1897
• Citation: 100 Ga. 97,27 S.E. 779
• Parties: PHENIX INS. CO. OP BROOKLYN v. SEARLES.
• Court: Georgia Supreme Court

27 S.E. 779

100 Ga. 97

PHENIX INS. CO. OP BROOKLYN

v.SEARLES.

Supreme Court of Georgia.

Feb. 26, 1897.

Insurance—Condition as to Title—Operation-Agents—Notice—Proof op Loss—Waiver.

1. Facts communicated to an insurance agent, who, in behalf of the company represented by him, receives and acts upon an application for insurance, collects the premium, and issues the policy, are in law considered as having been communicated to the company itself, and the agent's knowledge of such facts is imputable to it.

2. Although a policy covering a house stipulated that it should be void if the house was "on ground not owned by the insured in fee simple, " and the building thus insured was in fact on land owned by another, the policy, so far as relates to this matter, was nevertheless binding upon the company if an agent such as is above described knew at the time of issuing the policy the real facts as to ownership.

3. In the absence of such knowledge either on the part of the company itself or its agent, the policy would be void if the house was in fact located upon land not belonging to the insured; and therefore, where, upon the trial of an action thereon, it was a disputed issue as to whether the agent did or did not, at the time of issuing the policy, know that the house was upon land belonging to one other than the insured, it was error to charge, in substance, that if the insurer, before issuing the policy, made no inquiry as to the question of ownership, and the insured communicated to it no information on this subject, the policy would not be void, and to refuse to charge that, if the company had no notice or information until after the fire that the house was located on land belonging to a party other than the insured, there should be a verdict for the defendant.

4. A statement made by such an agent to the insured, within the time during which the latter, under the terms of the policy, was allowed to furnish proofs of loss, that the company declined or refused to pay the loss, will amount to a waiver of such proofs; but, where proofs of loss were not furnished within the time stipulated, a subsequent refusal to pay would not be such a waiver.

5. Where a policy of insurance, after stipulating that unless certain proofs of loss were furnished within a specified time the policy should be void, further provided that the company might require of the insured additional information or evidence as to the nature and extent of the loss, that the latter should submit to written examinations under oath concerning the same, and that, in the event of disagreement as to the amount of the loss, there should be an appraisement thereof, and also stipulated, "This company shall not be held to have waived any provision or condition of this policy, or any forfeiture thereon, by any requirement, act, or proceeding on its part relating to the appraisal or to any examination herein provided for, " held, that the company did not, by availing itself of its right under the policy to obtain such additional information, etc., waive any forfeiture of the policy which may have resulted from the failure of the insured to furnish within the time prescribed the proofs of loss called for in the first instance. Especially is this so where, in undertaking to exercise this right, the company expressly stated in writing to counsel for the insured that it did so "without waiving any of the rights of the company under the policy."

(Syllabus by the Court.)

Error from city court of Richmond; William

F. Eve, Judge.

Action by Georgia Searles against the Phenix Insurance Company of Brooklyn. There was a judgment for plaintiff, and defendant brings error. Reversed.

The following is the official report:

Georgia Searles sued the insurance company upon a policy of insurance which she alleged was issued to her on November 1, 1893, by defendant, through its agents, Symmes & Sons, insuring her for 12 months, to the amount of $300. on her one-story, frame, shingle-roof dwelling in Augusta, against loss or damage by fire. She alleged, among other things: When she made known to said agents that she wished the insurance, they sent one Belcher to Inspect the house and report to them its value and any other desired information. He inspected the house, and obtained for defendant all the information he desired, and reported to said agents that he considered the house fully worth $300. She acted in good faith in making the application, answering fully and truthfully every question asked her by the agents or by Belcher, and making known to them everything she knew or ought to have known to be material for the insurance. By mistake of said agents, for which she was in no way to blame, the policy was issued to her as "Georgia Thruse, " instead of Georgia Searles. On December 21, 1893, the dwelling was destroyed by fire, whereby she suffered loss to the extent of $300. At the time of effecting the insurance and at the time of the fire she was the owner of the property insured. She gave verbal notice immediately to defendant of the loss, and it sent an adjuster to adjust the loss; but after coming to the scene of the fire, and having several talks with petitioner, he did not adjust the loss, nor seek to do so. During the 60 days next after the fire (the time within which the policy called for proof of loss) the company refused entirely to pay her the loss, and since then has continued to refuse, which refusal rendered it unnecessary that she should make any proof of loss. However, she did make proof of loss in the manner required by the policy on February 21, 1894, and forwarded the same to the office of defendant at Atlanta, Ga. Since then defendant has kept said proof of loss, making no objection thereto nor placing its refusal to pay upon the ground of any defect therein. By reason of the above, defendant is indebted to her the $300; and because thereof, and because it has no reasonable, just, or legal defense, and has acted in bad faith and been stubbornly litigious, it has damaged her $30 attorney's fees, and 25 per cent, upon the amount of loss sued for, etc. Defendant pleaded, among other things, that It was not indebted to plaintiff; that at the time of the fire plaintiff did not own the land upon which the house was built, which fact was not known to it until after the fire, and, according to a provision in the policy, It was rendered void thereby; that the party by whom the policy was taken out represented to it that the insured owned the land; that the house was not worth more than some $100, but was represented by plaintiff to be worth $300, and she thereby attempted to perpetrate a fraud upon defendant when asking for payment, whereby the policy is avoided, and in any event plaintiff is not entitled to the sum claimed; that proofs of loss were not submitted to it within 60 days from the date of the fire, as required by the policy, and said proofs were never waived, nor did it deny liability within 60 days from the date of the loss; that plaintiff did not own the house, but the same belonged to the owner of the land, and the true interest plaintiff had in the house Was concealed from defendant by her, and, had it known of the character of her ownership, it would not have insured the same; that shehad no contract with the owner of the land allowing her to keep separate the ownership of the house, and, if she did, she forfeited the right of separate ownership by nonpayment of lease rent for more than two years; and that in her proof of loss she falsely and fraudulently swore that the value of the insured property was $300, when in fact it was not worth over $150, thereby releasing defendant. There was a verdict for plaintiff for the amount sued for, and, defendant's motion for a new trial being overruled, it excepted.

The motion was upon the general grounds that the verdict was contrary to law, evidence, etc. Also, because the court erred in overruling the motion for nonsuit made by defendant at the conclusion of the testimony for plaintiff. Further, because the court erred in charging: "The first question for you to determine Is, was the proof of the loss submitted according to the contract of insurance; that is, was it submitted within sixty days after the fire?" Alleged to be error because it was undenied by plaintiff that the proof was submitted after 60 days, and the evidence was uncontradicted to that effect.

Error in charging: "If they [proofs of loss] were not submitted within sixty days after the fire, then was the submission of proofs waived by the company, rendering it unnecessary?" Alleged to be error because no evidence of waiver was produced to the jury which could legally operate as a waiver, or from which they could legally infer that there was a waiver.

Error in charging: "If you find from the testimony submitted to you that the company within sixty days refused to pay, or denied their liability, and such denial or refusal was communicated to the plaintiff, then it was unnecessary to have made the proof within the time." Alleged to be error because there was no evidence that any officer of defendant having authority to represent it had refused to pay or denied liability of defendant within 00 days.

Error in charging: "If you believe from the testimony that proof was asked after the expiration of sixty days, and without any express refusal to waive any right, then that would be a waiver of the production. But if the proof was asked accompanied by an express statement of a refusal to waive, then it would not be a waiver." Alleged to be 'error because there was no testimony to the effect that there was any demand for further proof, unaccompanied by an express statement of a refusal to waive. Further, because the contract of insurance provided that additional proof might be asked or interrogatories submitted without being a waiver of any of the provisions of the policy.

Error in charging: "Objections to proofs of loss are waived where the proofs furnished...