Queen Ins. Co v. Peters

• Decision Date: 15 January 1912
• Docket Number: (No. 3,402.)
• Citation: 73 S.E. 536,10 Ga.App. 289
• Parties: QUEEN INS. CO. v. PETERS.
• Court: Georgia Court of Appeals

73 S.E. 536

(10 Ga.App. 289)

QUEEN INS. CO.

v.PETERS.

(No. 3, 402.)

Court of Appeals of Georgia.

Jan. 15, 1912.

(Syllabus by the Court.)

1. Removal of Causes (§ 109^*) — Remanding Cause to State Court—Effect.

The judgment of the United States Circuit Court, remanding a case to the state court from which it has been removed, is final, and it is the duty of the state court to receive jurisdiction and proceed with the trial.

[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. § 235; Dec. Dig. § 109.*]

2. Insurance (§ 156*) — Validity of Contract—Deceased Person as Insured.

Courts will draw every reasonable deduction to uphold contracts of insurance. A contract of insurance issued in the name of a dead man as the insured will not for that reason alone be held invalid. Unless it appears to the contrary, the company will be presumed to have known the fact that the person named as the insured was dead, and that the coutract was made for the benefit of the person or persons representing the estate. And especially is this true where the policy itself expressly provides that, "wherever in this policy the word 'insured' occurs, it shall be held to include the legal representatives of the insured."

[Ed. Note.—For other cases, see Insurance, Dec. Dig. § 156.*]

3. Insurance (§ 624*)—Action on Policy-Party.

The administrator on the estate of the insured is the proper personal representative of the insured intestate to sue on a policy contract issued in the name of the insured intestate.

[Ed. Note.—For other cases, see Insurance, Dec. Dig. § 624.*]

4. Insurance (§ 675*)—Actions on Policies —Attorney's Fees and Damages.

Where the amount of the verdict is substantially less than the amount claimed in the proofs of loss and sued for, a verdict for attorney's fees and damages was unauthorized. Besides, the question of law involved in the present case was sufficiently doubtful and important to rebut the existence of bad faith on the partof the company in its refusal to pay the policy and in contesting its validity.

[Ed. Note.—For other cases, see Insurance, Dec. Dig. § 675.^2-*]

Error from City Court of Moultrie; J. D. McKenzie, Judge.

Action by Beulah Peters, administratrix, against the Queen Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed, with directions.

King, Spalding & Underwood, for plaintiff in error.

J. A. Wilkes and Shipp & Kline, for defendant in error.

HILL, C. J. Mrs. Beulah Peters, administratrix of M. Mathis, sued the Queen Insurance Company upon a policy of insurance issued in the name of M. Mathis, covering a building and the furniture therein. The verdict was for plaintiff for $1,300 on the building, $250 as attorney's fees, and 12 1/2 per cent. damages. At the proper time application was made to remove the case to the Circuit Court of the United States upon the ground of diversity of citizenship. The judge of the state court refused to pass an order of removal, being of the opinion that the attorney's fees sued for under Civil Code 1910, § 2549, were part of the costs and could not be computed in calculating the necessary jurisdictional amount. There was no exception to this judgment of the state court. Subsequently the record was filed in the United States court, and on a hearing before the judge of that court the case was remanded for trial to the state court, Judge Speer concurring in the view of the former court, and over objection by the defendant the case proceeded to trial in the state court. The evidence is not in conflict, and briefly stated is as follows:

The policy of insurance sued upon was issued by the Queen Insurance Company January 2, 1908, in the name of "M. Mathis" as the insured; no other person being mentioned, nor any words of description added. The fire which destroyed the property covered by the policy took place on December 8, 1909. The policy was in force at the time of the fire. On February 1, 1909, the plaintiff, Mrs. Beulah Peters, was duly appointed administratrix upon the estate of M. Mathis, who was dead when the policy was issued, having died in January, 1897. He left surviving him a widow and six children, the plaintiff being one of them, and the widow was still in life when the suit was filed. M. Mathis left no debts, and left other property besides that covered by the policy. No other administration was ever had upon his estate. Except proof of the value of the property insured and destroyed, and what would constitute reasonable attorney's fees, no oral testimony was introduced. The documentary evidence consisted of exemplified copies of letters of administration, deeds showing title to the property in M. Mathis, the policy of insurance declared upon, proofs of loss by the administratrix, agreed statement as to the removal proceedings, and admissions of death of M. Mathis, relationship, etc., recited above. While there are several grounds of error in the motion for a new trial, all of them can be properly condensed into two: (1) As to the jurisdiction of the court; (2) as to the validity of the policy contract.

1. We do not deem it necessary to decide the question of jurisdiction, or to determine whether the attorney's fees claimed should be regarded as costs or as damages. In view of the language of the statute of this state in allowing the recovery of 25 per cent. on the liability in addition to the loss, and the decisions of this court and the Supreme Court, we are inclined to think that attorney's fees allowed in such cases are a substantive part of the damages, and are not "costs." Civil Code 1910, §§ 2549, 5992; Missouri Insurance Co. v. Lovelace, 1 Ga. App. 449 (6), 58 S. E. 93; Traders' Insurance Co. v. Mann, 118 Ga. 385, 45 S. E. 426. Irrespective of this question, however, the decision of the learned judge presiding in the United States Circuit Court is final on the subject of jurisdiction. Peters v. Queen Ins. Co. (C. C.) 182 Fed. 112. Even if the judge of the state court had granted an order of removal when the application was made to him, when the federal court remanded it to the state court, it was the duty of the state court to receive jurisdiction and proceed as if the erroneous order of removal had not been granted. 4 Fed. St. Ann., pp. 258, 259, and citations. In other words, the jurisdiction of the state court would not have been lost, but only suspended, and when the case was remanded the question of jurisdiction was finally settled. We do not mean to say that the defendant, when the application was made in the state court to remove and was refused, could not have preserved exceptions pendente lite, or that, when the judge of the federal court remanded the case to the state court for trial, an appeal could not have been had to the United States Circuit Court of Appeals. But neither was done, and the question of jurisdiction is settled by the decision of the federal court, remanding the case for trial to the state court.

2. Was the contract valid? The plaintiff in error says not, because M. Mathis was dead when the policy was issued, and a dead man cannot contract, and there must be "parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject-matter upon which it can operate." Civil Code...