Sutherlin v. The Underwriters' Agency

• Decision Date: 31 January 1875
• Parties: William T. Sutherlin, plaintiff in error. v. The Underwriters' Agency, defendant in error.
• Court: Georgia Supreme Court

53 Ga. 443

William T. Sutherlin, plaintiff in error. v. The Underwriters' Agency, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1875.)

Attachment. Amendment. Insurance. Pleadings. Joint and several liabilities. Bill of exceptions. Practice in the Supreme Court. Production of papers. Practice in the Superior Court. Before Judge Kiddoo. Dougherty Superior Court. April Adjourned Term, 1874.

This is the second time this case has been before the Supreme Court: See 46th Georgia Reports, 652. Only such additional facts are here stated as are necessary to an understanding of the opinion.

The parties having announced ready, the plaintiff called upon defendant's counsel to produce the original open policy number seven hundred and eighty, issued by defendant to Y. G. Rust, under the notice served upon them. *Mr. Davis, one of defendant's counsel, testified that such paper was used on a former trial, but he had not seen it since; that it was not in his possession, power or control, and that he knew not where it was.

Mr. Vason, of counsel for defendant, testified that he delivered the paper to Mr. Raine, then an agent of the defendant, to be copied, so as to have it embodied in a brief of evidence to be used by defendant on a motion for a new trial; that the original, when in his possession and when used on the former trial, had, before that time, been mutilated and the officers' names torn off; that he did not know where it was, and that it was not in his power, possession, custody or control.

Mr. Raine testified substantially as did Mr. Vason, with theadditional statement that it was his recollection that he had returned the paper to the latter.

Defendant's counsel proposed to allow the plaintiff to use a copy of the mutilated original without objection on their part; also to admit the contract of insurance as sued on.

Plaintiff moved for a judgment by default on account of the failure of defendant to respond to such notice. The motion was overruled and plaintiff excepted.

The defendant moved to dismiss the attachment proceedings because the bond was defective.

The facts upon which this motion was based were as follows: The affidavit set out the names of the insurance companies composing defendant in full; the place for the name of the obligee of the bond was left blank, but the defendant was, in other portions of said instrument, referred to as "said fire insurance companies, " "and as "said insurance companies."

The motion was sustained and plaintiff excepted.

Plaintiff proposed to amend the bond by inserting the name of defendant therein, and by giving new and additional security. This the court refused to permit and plaintiff excepted.

The defendant moved to dismiss the plaintiff's declaration because a joint suit against the insurance companies composing *the defendant could not be maintained under policy seven hundred and eighty. The copy of this policy attached to said declaration contained the following provision:

"It is further understood and agreed by and between the parties hereto, that nothing herein contained, shall be construed as creating or imparting any joint liability on the part of the above named companies or either of them, but that such companies shall be regarded as only severally liable upon this policy for the amount insured by each under the same, in the same manner, and not otherwise, as if each had issued its separate policy for the proportionate amount which each insures as above mentioned; and if any additional amount shall be indorsed upon this policy, it is to be with the understanding that the said companies each become insurers for one fourth only of each additional amount."

It also appeared from said policy that each of said companies received its share of the common premium separately.

The court sustained the motion and plaintiff excepted.

The plaintiff proposed to amend his declaration by charging each of the companies composing the defendant with one-fourth of the loss, and by asking that the verdict and judgment be moulded accordingly. This the court refused to permit and plaintiff excepted.

The court stated that it would allow the plaintiff to proceed against one of the companies and dismiss as to the others. The suit was accordingly dismissed as to all of said companies except the Germania. To this ruling the plaintiff excepted.

Error is assigned upon each of the aforesaid grounds of exception.

When the case was called in this court, a motion was made to dismiss the writ of error upon the ground that the rulings excepted to were not final, as the case was still pending in the court below. It appeared that the attachment had been levied by service of process of garnishment, which had not been dissolved. The court heard argument of the case reserving itsdecision upon the motion. The motion was overruled at *the...