St. Paul Fire & Marine Ins. Co. v. Brunswick Grocery Co.
| Decision Date | 24 July 1901 |
| Citation | 39 S.E. 483,113 Ga. 786 |
| Parties | ST. PAUL FIRE & MARINE INS. CO. et al. v. BRUNSWICK GROCERY CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. One who filed a claim to a fund in the hands of a garnishee, and who dissolved the garnishment, was a party to the issue formed by the plaintiff's traverse of the garnishee's answer; and upon the trial of such an issue it was erroneous for the court, in acting upon a motion of the plaintiff to separate the garnishee's witnesses, to exclude the claimant, over her objection, from the court room during the trial.
2. Admissions made by a party to a case on trial, in pleadings filed by such party in previous litigation with others, are if relevant to the issues in the case being tried, admissible in evidence.
3. An assignment of a policy of fire insurance must be in writing.
4. Where a husband conveys property to his wife for the purpose of defrauding his creditors, and she subsequently has the same insured for her own benefit, and a loss covered by the policy occurs, the insurance company, if in any event liable to the husband for such loss, certainly is not if it issued its policy in ignorance of the fraudulent transaction between him and his wife, and hence cannot in such a case be by garnishment made liable to his creditors.
Error from city court of Brunswick; J. D. Sparks, Judge.
Action by the Brunswick Grocery Company against L. M. Russell. Judgment for plaintiff. Garnishment served on the St. Paul Fire & Marine Insurance Company. From a judgment for plaintiff the garnishee and L. M. Russell bring error. Reversed.
The Brunswick Grocery Company obtained a judgment against L. M Russell, and had summons of garnishment served upon the St Paul Fire & Marine Insurance Company. Subsequently to the service of the summons of garnishment, the wife of the defendant, whose initials were the same as those of her husband, claimed the fund in the hands of the garnishee, and dissolved the garnishment, in accordance with the statute. After such dissolution the insurance company filed its answer, denying any indebtedness to the defendant, which was traversed by the plaintiff. Upon the trial a verdict was rendered in favor of the traverse. The garnishee and the claimant made a motion for a new trial, which being overruled, they excepted. It appeared upon the trial that L M. Russell, the husband, opened a grocery business at the corner of Monk and Oglethorpe streets in the city of Brunswick in October, 1896. There was introduced in evidence a bill of sale of the stock of groceries, absolute upon its face, made by the husband to the wife, dated October 20 1896, purporting to have been made in consideration of $425 paid by her to him, and to be attested by one Currie and by Anderson, a notary public. Anderson testified that the paper was signed or acknowledged before him January 9, 1898; that he had no recollection as to the matter, but that he kept a book of his official entries, and such book showed that he attested the paper upon that date; that he supposed Currie, the other witness, was present; that he would hardly have signed it if Currie had not been present. The husband and wife testified that the bill of sale was not taken to Anderson to be attested by him until after it was executed; that it was executed and delivered to her on the day that it bears date; that it was made to secure her for $425 of her separate estate, which was loaned by her to him, and used by him in paying for goods purchased by him for use in his business; and that no part of the loan had ever been paid to her. The husband testified that he took the bill of sale to Anderson, the notary public, on January 9, 1898, to have it attested officially, in order that it might be recorded. On March 20, 1897, the St. Paul Fire & Marine Insurance Company, the garnishee, issued a policy of fire insurance for $500, to continue one year, on the stock of goods at the corner of Monk and Oglethorpe streets, to "L. M. Russell." The husband and wife testified that this policy was taken out for her, as additional security for the loan she had made him; that she told him to take it out for her; and that he delivered it to her immediately after it was issued. According to the evidence, the first time anything was said to the agent, who issued in the policy, in regard to the wife's interest in the insurance, was in January, 1898, about two or three weeks before the fire. This was when the husband went to the agent to have an indorsement made on the policy as to the removal of the goods to a different store from the one mentioned in the policy. The agent testified that the husband then said he wanted the policy put in his wife's name, as he owed her some money; that the goods were hers, as he had turned them over to her to secure a debt he owed her; and that he (the agent), on ascertaining that the initials of the wife were the same as those of the husband, informed him that he did not think it necessary to make any indorsement on the policy other than the one as to the removal of the goods. The date of the indorsement for removal was January 15, 1898. As to this matter, the husband testified: The grocery business was carried on by the husband in his own name. Plaintiff's judgment was founded on a debt for goods bought by the husband from the plaintiff for use in the business mentioned. Plaintiff had no notice that the wife claimed any interest in the...
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