Sentinel Fire Ins. Co. v. McRoberts

Decision Date24 November 1934
Docket Number23920.
Citation179 S.E. 256,50 Ga.App. 732
PartiesSENTINEL FIRE INS. CO. v. McROBERTS et al.
CourtGeorgia Court of Appeals

Rehearing Denied Feb. 2, 1935.

Syllabus by the Court.

1. The evidence authorized a finding that the defendant insurance company by its adjuster recognized its liability on the fire insurance policy sued upon for the admitted total loss, and agreed to pay the claim merely upon obtaining the signature of the insured on a final settlement receipt.

2. Such a declaration by the authorized agent of the company could be taken as an implied absolute waiver of proof of loss as stipulated for by the policy. Such a waiver, as distinguished from the rule of estoppel, need not be sustained by a showing of detriment to the insured or supported by other consideration, and, when once made with knowledge of the facts and in the absence of fraud, cannot be withdrawn.

3. Even if it were necessary for the insured to show a consideration as in estoppel, whereby detriment was suffered because of the statements of the adjuster with regard to the liability of the insurance company and promise to pay the claim, such an element sufficiently appears in the requirements of the policy that any claim should not be payable until sixty days after the company received proof of loss and that suit could not be brought until after full compliance with the policy and in the delay in payment to the insured or in their right to file suit caused by the failure of the company until six months after the statements to nullify or withdraw them.

4. Under the evidence as to the statements by the adjuster of the insurance company, interest was recoverable on the face amount of the policy as a liquidated demand made fixed or certain by "agreement or otherwise."

5. The items for a penalty and attorney's fees against the insurance company were unauthorized.

6. The verdict for the principal amount of the policy and interest being authorized and the general and special grounds of the company's motion for new trial, which are dealt with in the opinion, being without merit except as to the penalty and attorney's fees, the judgment for the plaintiffs is affirmed upon condition that these erroneous items be written off.

Error from Superior Court, Jeff Davis County; J. H. Thomas, Judge.

Suit by Ida McRoberts and another against the Sentinel Fire Insurance Company. Judgment for plaintiffs, defendant's motion for a new trial was overruled, and defendant brings error.

Affirmed on condition.

Statement of facts by Jenkins, P.J.:

Ida and S.W. McRoberts sued Sentinel Fire Insurance Company for $750 the face amount of a fire insurance policy on a dwelling, and for interest, a penalty, and attorney's fees. The jury returned a verdict in favor of the plaintiffs for $750 principal, $48.07 interest, $187.50 penalty, and $100 attorney's fees. The insurance company excepted on general and special grounds to the denial of its motion for new trial. It contends that the insured failed to furnish to the company a signed and sworn proof of loss within sixty days after the fire, as required by the policy, or at any time thereafter, that the company is not liable for interest on an unliquidated claim, and that the company is not liable because of any bad faith, for the penalty and attorney's fees. The policy provided that the amount of loss "shall be payable sixty days after notice * * * and satisfactory proof of the loss have been received by this company in accordance with the terms of the policy," that "within sixty days after the fire, unless such time is extended in writing by the company, [the insured] shall render a statement to the company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire, the interest of the insured and of all others in the property, the cash value of each item thereof and the amount of loss thereon, * * * " and that "no suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire." With regard to notice and proof of loss, the petition pleaded: "That the defendant had due notice of said loss, according to the terms and requirements of said insurance policy; that * * * the agent of the defendant company living in Hazlehurst, Georgia, was notified immediately after the destruction of said dwelling house by fire; and that through the said * * * agent as aforesaid, and other sources, Mr. Frank West, acting with and for the Otis A. Murphy Company Inc., an adjusting agency for losses under insurance policies and an adjusting agent in this instant for this particular loss, representing the said defendant company, soon after the said loss, and within sixty days from said loss and damage by fire as herein designated, came, and in company with the said * * * agent of the said defendant, and in company with the other parties, visited the site of the dwelling house, and there stated that the loss was an honest loss and the building was not over-insured, and that settlement would be promptly made by the said defendant for said loss; thus waiving any further notice, and agreeing to an early adjustment. Petitioners gave no further notice in writing of the extent and amount of the loss, but relied upon the inspection of the loss and premises by said adjusting agency and the promise of an early adjustment as sufficient notice of said loss." The answer denied these averments.

The evidence was undisputed that the loss was total. There was testimony from one of the mortgagees, who had an interest in the insurance under a loss payable clause, that the company's adjuster had made to him, two or three days after the fire, which occurred on July 29, 1932, a statement substantially as alleged in the petition, that "there would be no delay in the settlement," and "all he wanted to do was to get the insured to sign the proper papers and settlement would be promptly made." The local agent of the company testified that the adjuster had stated that "the transaction was complete except getting the insured's signature." There was also testimony to the effect that the mortgagee to whom the statements of the adjuster were made was at that time the authorized agent of the insured, and that the insured relied on these statements.

No witness testified for the company in denial of the alleged statements made by the adjuster. Only certain correspondence was introduced. On December 10, 1932, the plaintiffs' attorneys wrote to the company the following letter:

"We hold fire insurance policy no. 1207, issued by your company, in favor of Ida and S.W. McRoberts, insuring a dwelling house at Graham, Appling County, Georgia, for $750. This dwelling was totally destroyed by fire on the 29th day of July last. Soon after the house was burned, the adjuster representing your company made investigation of the loss, estimated the value etc. of the building, and states that his investigation showed that it was an honest fire, and payment would be promptly made; that the insurance was not excessive.

The insured have patiently waited for settlement and the matter is still delayed with no definite assurance as to when payment will be made. The law fixes the time [in] which settlement must be made in cases like this at issue. This time has already elapsed, and this is to notify you that unless payment is promptly made to us for the amount of this policy, we will file suit immediately upon this policy now in our possession, and will also include penalty and attorney's fees as fixed by law. We hope this will not be necessary, and that you will promptly make settlement; otherwise, suit will be filed in a few days," etc.

On December 22, 1932, the adjuster wrote to the plaintiffs' attorneys the following letter:

"The company has sent us copy of your letter of December 10th with reference to claim of Ida and S.W. McRoberts. We note that you state in part: 'Soon after the house was burned, the adjuster representing your company made investigation of the loss, estimated the value etc. of the building, and stated that his investigation showed that it was an honest fire, and payment should be promptly made; that the insurance was not excessive.' This adjuster begs to say that the statements alleged to have been made by us as quoted above are incorrect. We were not able to get in touch with the assured at the time of our visit and, therefore, could express no opinion as to the origin of the loss and furthermore we made no estimate as to the loss and damage.

We draw your attention to the terms of the policy which have not been complied with inasmuch as no proof of loss has been submitted to the insurance company and there has been no waiver of such an instrument by the company or by any of its representatives.

Without admitting or denying liability, nor waiving, nor intending to waive, any of the company's rights, all of which rights are specifically reserved, we remain," etc.

There was no evidence as to any bad faith of the company in refusing or failing to pay the claim after demand, other than as might be inferred from its actions through the statements and letter of the adjuster. The suit was filed on May 8, 1933. The jury returned a verdict in favor of the plaintiffs for $750 principal, the face amount of the policy, $48.07 interest, $187.50 penalty, and $100 attorney's fees. A new trial was denied. The general and special grounds of the motion are sufficiently described in the opinion.

Smith Smith & Bloodworth, of Atlanta, and Gordon Knox, of Hazlehurst, for plaintiff in error.

Chastain &...

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