Southern Mut. Ins. Co. v. Turnley

• Decision Date: 26 February 1897
• Parties: SOUTHERN MUT. INS. CO. v. TURNLEY et al.
• Court: Georgia Supreme Court

27 S.E. 975

100 Ga. 296

SOUTHERN MUT. INS. CO. v. TURNLEY et al.

Supreme Court of Georgia

February 26, 1897

Syllabus by the Court.

1. Where a policy of fire insurance was issued to a husband designated generally as "trustee" and another, the former, if his wife was part owner of the property covered by the policy, had such an insurable interest therein as would authorize him, for her benefit, to join with the other person insured in an action upon the policy. Code, § 2795.

2. While it was not essential to the validity of an action upon an insurance policy, brought under section 3392 of the Code to set out or attach a full copy of all which was written or printed upon such policy, the declaration ought to have contained, or had attached thereto, a copy of everything appearing upon the face and in the body of the policy including all the stipulations embraced in that portion of the same above the signatures of the company's officers by whom it was executed; and, where any of such stipulations constituted conditions precedent to the bringing of an action upon the policy, compliance with the terms of such stipulations, or satisfactory reasons for noncompliance should have been alleged.

3. The policy sued on in the present case contained such stipulations, viz. those which, in effect, declared that, in case the company did not elect to replace, repair, or rebuild the property destroyed or injured, no action for the recovery of any claim upon the policy should be sustainable in any court of law or equity until after an award as to the amount of damage or loss had been made by arbitrators mutually chosen for that purpose.

(a) The declaration was defective, in that it did not set forth the essential parts of the policy, or allege compliance with the stipulations above referred to, or state any reason for noncompliance therewith; but no question as to the insufficiency of the declaration was properly brought to this court for review.

4. As the policy tendered in evidence was apparently a different instrument from that described in the declaration, in that the latter was not alleged to contain certain conditions which were set forth upon the face and in the body of the former, the rejection of this evidence would have been warranted; but, inasmuch as the defendant's plea treated the action as a suit upon the policy so tendered, admitting it in evidence was not a matter of which the defendant had any right to complain.

5. The evidence showing that a arbitration was actually had, and an award rendered, the declaration was further defective in that it failed to set forth these facts. If the plaintiffs desired to attack the award on the ground of fraud, or for any other reason, they should have done so by appropriate allegations.

6. Although the court below, without such allegations, admitted evidence tending to vitiate the award, no valid objections to such evidence are presented for consideration by this court.

7. It is too late to amend a declaration after a judgment thereon has been rendered, and a motion for a new trial is pending.

8. Though a fire insurance policy may stipulate that the insured shall furnish proofs of loss, yet if it also stipulates that in a certain contingency no action shall be brought upon the policy until after an award fixing the amount of the loss or damage, the insurance company will be held to have waived such proofs of loss if, without receiving the same, it nevertheless enters with the insured into an arbitration for the purpose of ascertaining the amount of the loss.

9. A stipulation in a policy of fire insurance declaring, in effect, that in case of loss payment shall be made "sixty days after the claim has been allowed by the directors" of the insurance company, cannot be held to mean that an actual allowance of the claim by the directors is an indispensable prerequisite to the right of the insured to claim payment or bring his action on the policy. Given such a meaning, the stipulation would be unreasonable, and contrary to public policy.

10. The evidence did not warrant any finding against the defendant for attorney's fees and damages.

11. The foregoing notes cover the controlling principles of law applicable to the present case, and, as it was not tried upon correct lines, there should, after appropriate amendments of the pleadings have been made, be another hearing in the light of what is here laid down.

Error from city court of Floyd; G. A. H. Harris, Judge.

Action by P. L. Turnley, trustee, and another, against the Southern Mutual Insurance Company. From a judgment for plaintiffs, defendant brings error. Reversed.

Dean & Dean and Erwin & Cobb, for plaintiff in error.

Reece & Denny, for defendants in error.

SIMMONS C.J.

A house covered by a policy of insurance issued by the Southern Mutual Insurance Company to P. L. Turnley, trustee, and Mrs. J. F. Edmonson, was burned, and in pursuance of stipulations in the policy providing for an appraisement by arbitrators as to the amount of the loss the parties entered into a submission agreeing that an appraisement should be made by certain persons named in the submission, and that the appraisement should be binding. An appraisement was accordingly had, in which the cash value of the property at the time of the fire was found to be $1,818.03. The amount of insurance expressed in the policy was $2,000, but it was provided therein that the company should not be bound for more than three-fourths of the actual cash value of the property at the time of the loss. This was before the act of 1895, requiring insurance companies to pay the full amount of loss up to the amount expressed in the policy. Some time after the appraisement was had an action upon the policy was brought against the company by Turnley, as trustee for his wife, and by Mrs. Edmonson, in which they sued for the full amount of the policy, and for damages on account of bad faith, and attorney's fees. In the declaration no reference was made to the appraisement, but, the insurance company having pleaded it in bar, the plaintiffs introduced evidence at the trial by which they sought to show that the arbitration had not been fairly conducted. There was a verdict for the plaintiffs for $1,854 principal, besides interest, 10 per cent. damages and 10 per cent. attorney's fees. The insurance company made a motion for a new trial upon numerous grounds, and, the motion being overruled, it excepted.

1. One of the question in the case was whether Turnley had, as trustee, such an insurable interest in the property as would authorize him to maintain an action upon the policy; it being contended on the part of the defendant that the effect of the deed under which Turnley was acting as trustee for his wife, and which was made since the enactment of the married woman's law of 1866, was to pass the legal title directly to her. On this subject we deem it sufficient to call attention to a section of the Code which appears to have been overlooked in the argument of the case, and which declares that "a husband *** may insure the separate property of his wife, *** the recovery being held by him in trust for" her. Civ. Code, § 2090; Code 1882, § 2795.

2-6. None of the questions as to the sufficiency of the declaration which were raised in the court below were properly brought before us for review. As, however, there is to be a new trial, and as it should be had upon proper pleadings, we shall deal briefly with this part of the case. In the first place, we think the declaration was defective in failing to set forth essential parts of the policy. The declaration purported, in an exhibit thereto, to set forth a copy of "what appears upon the face and in the body of the policy"; but, as was disclosed when the policy itself was offered in evidence, stipulations and conditions forming a part of the policy, and preceding the signatures of the officers executing it, were omitted. The part set out in the declaration and exhibit was merely that portion which stated that the insurance company, in consideration of a certain premium, insured the persons to whom the policy was issued against loss or damage by fire on the property described to a certain amount, for a designated period. It was contended on the part of the...