Phenix Ins. Co. v. Hart

• Court: Georgia Supreme Court
• Writing for the Court: FISH, J.
• Citation: Phenix Ins. Co. v. Hart, 112 Ga. 765, 38 S.E. 67 (Ga. Feb 26, 1901)
• Decision Date: 26 February 1901
• Parties: PHENIX INS. CO. v. HART.

38 S.E. 67

112 Ga. 765

PHENIX INS. CO. v. HART.

Supreme Court of Georgia

February 26, 1901

Syllabus by the Court.

1. Where one of the defenses to an action upon a policy of fire insurance was that the plaintiff had been guilty of fraudulent acts, which, under the stipulations in the policy rendered the same void, and when such defense was supported by testimony, it was erroneous to omit proper instructions as to the same. Being a vital issue in the case, the court should have covered it by a proper charge, though no request to do so was presented.

2. Where an important issue was strenuously contested, it was erroneous to give a charge easily susceptible of the construction that the defendant admitted the truth of the plaintiff's contention with respect to that issue.

3. Section 2140 of the Civil Code, which provides for the recovery, under certain conditions, of damages and attorney's fees in suits against insurance companies, is unconstitutional, because in violation of that portion of section 1 of the fourteenth amendment of the constitution of the United States which declares that no state shall "deny to any person within its jurisdiction the equal protection of its laws."

4. Before a memorandum made for the purpose of preserving a record of a given fact or transaction can in any event be admitted in evidence as original testimony, it must affirmatively appear that it was made by the witness in connection with whose testimony it is offered, and that testimony must show absolutely the genuineness and correctness of the memorandum.

5. While the mere acts of receiving oral information as to the fact that a fire had occurred, and receiving a written list or memorandum of the goods alleged to have been destroyed by the fire, would not, without more, dispense with stipulations in the policy requiring written notice of the fire and formal proofs of loss, yet if the company's authorized agent accepted as sufficient the oral notice, and also accepted such list as a satisfactory compliance with the requirements as to furnishing proofs of loss; the right of the insured to enforce the policy would not necessarily be lost for lack of literal compliance with the terms of the policy as to these matters.

6. Several of the objections as to the admissibility of testimony failed to show with sufficient distinctness what the evidence objected to was, and the points made are in other respects too loose and general for consideration.

Error from city court of Atlanta; H. M. Reid, Judge.

Action by D. B. Hart against the Phenix Insurance Company. Judgment for plaintiff. Defendant brings error. Reversed.

Slaton & Phillips, for plaintiff in error.

Westmoreland Bros. and D. W. Rountree, for defendant in error.

FISH J.

Mrs Hart sued the Phenix Insurance Company for the loss of certain household goods and furniture, which she claimed was covered by a policy issued to her by the defendant. The petition alleged that the plaintiff was entitled to recover in addition to the value of the goods destroyed, damages and attorney's fees, under section 2140 of the Civil Code. To such allegation the defendant demurred, on the ground that this section of the Civil Code is contrary to the constitution of the United States, in that it deprives insurance companies of property without due process of law and denies them equal protection under the law. The demurrer was overruled, and the defendant filed exceptions pendente lite. There was a verdict for the plaintiff for the amount sued for, with interest, together with $90 damages and $100 attorney's fees. The defendant moved for a new trial, which the court refused, on condition that plaintiff would write off the damages and attorney's fees. The plaintiff complied with the requirement, and a new trial was denied. Defendant, in its bill of exceptions, assigned error upon the judgment overruling its motion for a new trial and also upon its exceptions pendente lite.

1. The policy sued on contained the following stipulation: "This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance, or the subject thereof, or if the interest of the insured in the property be not truly stated herein, or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject-matter thereof, whether before or after a loss." One of the pleas filed by the defendant set forth in detail a violation by the plaintiff of this provision in the policy, and there was evidence introduced tending to support such plea. While the court stated to the jury this contention of the defendant, it wholly omitted to instruct them upon this vital issue in the case. This omission was doubtless a mere oversight on the part of the learned judge; but, in our judgment, it necessitates the granting of a new trial, even though no request to charge upon this issue was made by the defendant's counsel.

2. Another contention of the defendant was that all of the property for the loss of which the suit was brought was not in the house and destroyed when it was burned. The court charged the jury: "Now, the plaintiff alleges that there was in the house the list of property which she attaches to her declaration (and the defendant admits it to be a true copy). Of course, you can get the items by referring to the list so attached." We think that this charge was misleading, because susceptible of the construction that the defendant admitted the list attached to the petition to be a correct list of the property destroyed.

3. As a new trial must be granted in this case, it is necessary to pass upon the question as to the constitutionality of section 2140 of the Civil Code, raised by the exceptions pendente lite to the overruling of the demurrer. That section provides: "The several insurance companies of this state, and foreign insurance companies doing business in this state, in all cases when a loss occurs, and they refuse to pay the same within 60 days after a demand shall have been made by the holder of the policy on which said loss occurred shall be liable to pay to the holder of said policy, in addition to the loss, not more than 25 per cent. on the liability of said company for said loss; also, all reasonable attorney's fees for the prosecution of the case against said company: provided, it shall be made to appear to the jury trying the same that the refusal of the company to pay said loss was in bad faith." The question made is whether this section of the Civil Code is a violation of that part of section 1 of the fourteenth amendment of the constitution of the United States providing that no state shall "deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of its laws." We think the decision of the supreme court of the United States in Railway Co. v. Ellis, 165 U.S. 150, 17 S.Ct. 255, 41 L.Ed. 666, in principle, is conclusive as to the unconstitutionality of the Code section under consideration. In that case a statute of Texas allowing an attorney's fee to the plaintiff in actions against railroad corporations, on claims, not exceeding in amount $50, for personal services rendered or labor done, or for damages, or for overcharges in freight, or for stock killed or injured, was adjudged unconstitutional. Mr. Justice Brewer, speaking for the majority of the court, said: "The single question in this case is the constitutionality of the act allowing attorney's fees. The contention is that it operates to deprive the railroad companies of property without due process of law, and denies to them the equal protection of the law, in that it singles them out of all citizens and corporations, and requires them to pay in certain cases attorney's fees to the parties successfully suing them, while it gives to them no like or corresponding benefit. Only against railroad companies is such exaction made, and only in certain cases. *** The supreme court of the state considered this statute as a whole, and held it valid, and as such it is presented to us for consideration. Considered as such, it is simply a statute imposing a penalty upon railroad corporations for a failure to pay certain debts. No individuals are thus punished, and no other corporations. The act singles out a certain class of debtors, and punishes them, when for like delinquencies it punishes no others. They are not treated as other debtors, or equally with other debtors. They cannot appeal to the courts, as other litigants, under like conditions and with like protection. If litigation terminates adversely to them, they are mulcted in the attorney's fees of the successful plaintiff; if it terminates in their favor, they recover no attorney's fees. It is no sufficient answer to say that they are punished only when adjudged to be in the wrong. They do not enter the courts upon equal terms. They must pay attorney's fees if wrong, and they do not recover any if right; while their adversaries recover if right, and pay nothing if wrong. In the suits, therefore, to which they are parties, they are discriminated against, and are not treated as others. They do not stand equal before the law. They do not receive its equal protection. All this is obvious from a mere inspection of the statute. *** It is well settled that corporations are persons within the provisions of the fourteenth amendment of the constitution of the United States [citing cases]. *** A state has no more power to deny to corporations the equal protection of the law than it has to individual citizens. But it is said that it is not within the scope of the fourteenth amendment to withhold from the states the...