Seabrook v. The Underwriters Agency

• Decision Date: 31 July 1871
• Citation: 43 Ga. 583
• Parties: E. W. SEABROOK, administrator, plaintiff in error. v. THE UNDERWRITERS AGENCY et al., defendants in error.
• Court: Georgia Supreme Court

43 Ga. 583

E. W. SEABROOK, administrator, plaintiff in error. v. THE UNDERWRITERS AGENCY et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1871.)

Insurance. Equity. Before Judge Johnson. Muscogee Superior Court. November Term, 1870.

This bill was by Seabrook, as administrator of Dawson against Rust, the Agent, and The Underwriters' Agency, a corporation of New York, composed of the Germania, the Hanover, the Niagara and the Republic Insurance Company, each of which is a corporation of New York, as averred, the averments of which are fully stated in the opinion. Answers had been filed and the bill was read on the trial when the Court dismissed it for want of equity.

H. L. Benning for plaintiff in error. The motion came too late: Story's Eq. Pl., 8, secs. 461, 291, Note 1, sec. 594; 27th Ga. R., 233, 352-259. If in time it was not good: 1 Dan'l Ch. Pr., 389, 398; 8th Ga. R., 506-486. Amendment: secs. 3435, 4118, R. Code. Constructive fraud: *sec. 3116 R. Code; Old Code, sec. 2948. Equity jurisdiction: R. Code, secs. 3115, 3041. Court first taking jurisdiction will keep it: Old Code, sec. 3029. The principal is bound for carelessness, etc., of agent: R. Code, sec. 2175; 18th Ga. R., 432, 411; Dig. F. Ins. Decisions, 306, sec. 4, (20 Barb., 468;) 19 How. R., 318; 1 Pars, on Ins., 503, 37, 2; Ed. F. Ins. Decisions, 444, secs. 4, 5, 6, 8, 9, 10, 17, 19, 20, 22, 24, 64; Id., 637, secs. 3, 25, 28; Id., 34, secs. 7, 11, 12, 15, 20, 23, 44, 52, 62, 63, 64; Hildyard on Ins., 537-8, 546-7. If principal is not bound agent is: R. Code, secs. 2187, 2167, 3076. Agreement to insure may be specifically enforced in equity: Dig. F. Ins. Decisions, 166, secs. 1, 2, 3. As to waiver by Insurance Agent: Carrugi\'s case, 40th and 41st Ga. R.

R. J. Moses for defendants.

WARNER, Judge.

This was a bill filed by the complainant against the defendants, on the 13th of April, 1866. The defendants had answered the bill. When the cause was called for trial at the November Term of the Court, 1870, and after hearing the bill read, the Court dismissed the same for want of equity, to which the complainant excepted. The facts alleged in the bill are in substance as follows: The complainant had two lots of cotton at Albany, Georgia, one of fifty bales, the other of sixty bales, which he desired to ship to Apalachicola, and to insure the same. On the 6th of February, 1866, Bowers, as the agent of complainant, wrote to us, the agent of the Underwriters Insurance Agency, at Albany, to "please find Mr. Oliver Cromwell, (who was also an agent of complainant,) and get particulars of how he ships two lots of cotton to Apalachicola, one of fifty and the other of sixty bales, and insure him to Apalachicola, send bills to me, and I will remit by express. Your prompt attention willmuch oblige, " etc. The bill alleges that this letter was received by Rust *on the 8th or 9th of February, that he looked up Cromwell in Albany, in order to obtain from him the particulars of how he was shipping said cotton, and read the letter to him with that view; that Cromwell then informed him that the lot of sixty bales was already on board the steamer White Rose, lying in the river at Albany, which would leave the next morning; that the lot of fifty bales would be sent by one of Rust\'s boxes, as there was not time to get it on board the steamer; that Rust made no further inquiry, apparently satisfied with the information he had received, retired, as the said Cromwell supposed, to make out the insurance as he was instructed to do by Bowers\' letter, which he had in his hand. On the 9th of February, 1866, Rust answered Bowers\' letter, in which he stated, "Your favor of the 6th instant, is received. Mr. Cromwell is now shipping sixty bales cotton by the steamer White Rose, now loading at this place; the other fifty bales he will not be able to get off in time for the boat, but will ship next week." This letter was received by Bowers two or three days after its date, who considered it to mean that his request had been complied with, and that the cotton was insured, and so the complainant was informed. And all parties rested satisfied that the insurance...