Pooser v. Norwich Union Fire Ins. Soc.
| Decision Date | 27 September 1935 |
| Docket Number | 24565. |
| Citation | 182 S.E. 44,51 Ga.App. 962 |
| Parties | POOSER v. NORWICH UNION FIRE INS. SOCIETY, Limited. |
| Court | Georgia Court of Appeals |
Adhered to after Rehearing October 5, 1935.
On Rehearing.
Syllabus by the Court.
1. The validity of a policy of fire insurance which represents the insured as the sole owner of the property is not affected by the existence of a voluntary deed of gift executed by such owner and placed in the possession of her attorney and agent with directions to deliver it to the donee-grantee when defects in the title to other property in the deed are removed. A gift is incomplete until acceptance. Until acceptance, it is revocable and passes no title.
2. Where a deed from the insured to a third person is relied on as showing that the insured was not sole owner of the property at the time of the fire, it may be shown by parol to be a voluntary deed of gift, notwithstanding a recital in the deed of a monetary consideration.
3. Where the proof of loss contains a statement by the insured that at the time of the fire a person other than the insured had an interest in the property by virtue of a deed to a named grantee, "conveying the property, delivered, not recorded pending title examination," and this is a misstatement in that the deed was in fact a voluntary deed of gift which had never been delivered to the grantee, or recorded, but had been physically delivered to the attorney and agent of the grantor with instructions to clear up certain defects in the title to another piece of property covered by the same deed, and upon so doing, to deliver the deed to the donee-grantee therein named, and at the time of the fire this had not been done, and the deed therefore passed no title or interest in the property out of the insured as the grantor, the true state of the title may be shown, where the statement was a mistake not fraudulently made and the insurer has not thereby been misled to his damage.
4. Where after the receipt of the proof of loss, notwithstanding it may not have been filed within the 60 days after the fire as required by the policy, the insured, at the company's request, orally informed the company of the true facts concerning the deed, the company is not relieved of liability on the ground that it appeared affirmatively from the proof of loss that the insured was not the sole owner of the property at the time of the fire.
5. Compensation for loss under an insurance policy which provides that proof of loss must be made within 60 days from the date of the loss, but puts no penalty on a failure to furnish the proof within 60 days, is not necessarily rendered unrecoverable by delay beyond the 60 days in the filing of the proof.
6. A misstatement of fact as to ownership or change of ownership in the sworn proof of loss, which was not made to deceive and which could not possibly have injured the insurer, cannot affect the latter's liability. This is true, although the policy contains a provision that it shall be void "in case of fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof whether before or after a loss." Such misstatement does not constitute "fraud or false swearing" as used in the policy.
Error from Superior Court, Seminole County; C. W. Worrill, Judge.
Petition by Mrs. Elizabeth S. Pooser against the Norwich Union Fire Insurance Company, Limited. To review a judgment sustaining demurrers to the petition, plaintiff brings error.
Reversed.
W. L Bryan, of Atlanta, E. C. Smith, Jr., of Donalsonville, and H G. Rawls, of Albany, for plaintiff in error.
Bennet & Peacock, of Albany, for defendant in error.
Mrs Elizabeth S. Pooser brought suit against Norwich Union Fire Insurance Company, Limited, to recover under a fire insurance policy an alleged loss by fire of a house belonging to the plaintiff. Demurrers both special and general to the petition as several times amended as will hereinafter appear were sustained and the petition dismissed. To the judgment sustaining the demurrers, the plaintiff excepts.
The two main questions presented for decision are whether it appears from the petition as amended that the interest of the plaintiff in the property insured and which was destroyed by fire was at the time of the fire "sole and unconditional ownership," except as provided in the policy, and that the plaintiff had not made a sufficient compliance with the requirements of the policy as to the proofs of loss.
It appeared from the allegations in the original petition that the defendant had, on October 2, 1931, issued a fire insurance policy to the plaintiff covering the plaintiff's house, that the house was afterwards destroyed by fire on February 6, 1932, that the premium had been paid, that "immediately after the fire" the plaintiff notified the defendant of the fire "by notifying the agent in person," that the defendant sent its adjuster who inspected the premises, that on November 12, 1932, the plaintiff filed with the defendant a sworn proof of loss which was sent by registered mail, that the plaintiff had demanded payment, and that the defendant had failed to pay. A copy of the policy appears as an exhibit.
In the first amendment it was alleged that at the date of the policy Mrs. Pooser was the owner in fee of the property, subject to a first mortgage in favor of Georgia Loan & Trust Company, and remained such owner until after the date of the fire; that about July 18, 1931, Mrs. Pooser executed a deed covering the insured property to Piney Pond Farms, a corporation, delivering the deed to her attorney, Goree, but the delivery "was not an unconditional delivery, but on the contrary was placed with him in escrow pending his examination of the legal status of Piney Pond Farms"; that the deed so remained in escrow with Goree and had not been delivered at the date of the fire; that the plaintiff in her proof of loss had stated the deed was "delivered, not recorded, pending title examination"; that the delivery was a conditional delivery to Goree and was not absolute, and therefore the title had not passed to the corporation at the time of the fire; that defendant delivered the proof of loss to its attorney, S. S. Bennet, and at his request Goree, plaintiff's attorney and agent, conferred with Bennet for the purpose of informing him as to any further details desired; that Goree explained to Bennet what plaintiff had meant by saying in the proof of loss that the deed had been delivered; that she had meant that it was delivered in escrow and that it was not a delivery to Piney Pond Farms; that the deed had not been recorded for the reason that she had not made an unconditional delivery; that Goree was to hold the deed until he had passed on certain legal aspects of the affairs of Piney Pond Farms, and when he had satisfied himself in this regard he was to record the deed which act was to constitute delivery to the grantee. It was further alleged that after receiving this information defendant retained the proof of loss and made no further objection thereto, and that defendant has therefore waived any right now to object to the proof of loss.
In the second amendment there was struck from the copy of the policy attached to the petition an indorsement purporting to transfer the policy to Mrs. E. Shingler.
In the third amendment it was alleged that the defects of title referred to in connection with placing the deed with Goree were defects affecting a tract of land other than the one on which the burned house was located, the deed covering both tracts; that Goree was instructed to examine the title to both tracts and to see if upon delivery of the deed to Piney Pond Farms this corporation would be seised of good title, subject to the Georgia Loan & Trust Company mortgage, and that on examination Goree found certain defects in the other tract; that, upon being informed of this, plaintiff instructed Goree to hold the deed until the title to this tract could be cleared by foreclosure; that Goree still has the deed, which was never recorded or delivered; that about March 2, 1932, Goree furnished defendant's adjuster with a copy of the unrecorded deed and explained the details of the escrow arrangement.
In the fourth amendment it was alleged that the deed to Piney Pond Farms was intended to be a deed of gift when effective by delivery at the request of the donee, Mrs. Shingler, plaintiff's mother, that the grantee was Piney Pond Farms, of which company Goree was an officer and stockholder; that no consideration was paid or agreed to be paid for the deed, and while in the hands of Goree it was subject at all times to plaintiff's recall and neither the deed nor the property had passed out of her control at the time of the fire. A copy of the deed was attached.
The fifth amendment refers to the rider to the policy referred to in the second amendment which shows a transfer or indorsement of the policy to "Mrs. E. Shingler as owner" of the property. It is alleged that this rider was not authorized by the plaintiff and was attached to the policy by mistake.
The policy sued on contained these provisions: ...
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