Swain v. Macon Fire Ins. Co.

• Decision Date: 28 July 1897
• Citation: 29 S.E. 147,102 Ga. 96
• Parties: SWAIN v. MACON FIRE INS. CO. MACON FIRE INS. CO. v. SWAIN.
• Court: Georgia Supreme Court

29 S.E. 147

102 Ga. 96

SWAIN v. MACON FIRE INS. CO.

MACON FIRE INS. CO. v. SWAIN.

Supreme Court of Georgia

July 28, 1897

Syllabus by the Court.

1. Although a policy of fire insurance stipulated that "the existence or subsequent procurement of other insurance on the property hereby insured" would, "unless specially agreed to in writing in or upon this policy," avoid the contract embraced therein, yet, if the agent of the company at the time of issuing the policy, in fact knew of the existence of prior insurance upon the property, the policy was not void because the company's consent to the prior insurance was not expressed in writing in or upon the policy as required by the stipulation above mentioned.

2. The evidence was conflicting upon the question as to whether or not the defendant's agent knew or had notice of the existence of the prior insurance when he issued the policy sued upon in the present case, and it was therefore erroneous to direct a verdict in the defendant's favor.

3. Where an action was brought for two separate and distinct claims arising upon an insurance policy, one for an alleged loss upon a house which had been burned, and the other for an alleged loss upon the furniture therein, the granting of an order declaring "that the plaintiff be and is nonsuit for the claim of loss upon the house set forth in the policy," was not the granting of a nonsuit, but merely an erroneous ruling, of which complaint could properly be made in a motion for a new trial.

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Action by R. H. Swain against the Macon Fire Insurance Company. Plaintiff was nonsuited as to one claim, and a verdict in favor of defendant was directed on the other. Both bring error. Judgment on the main bill of exceptions reversed; on cross bill, affirmed.

Jas. A Thomas and Hardeman & Moore, for plaintiff.

Dessan & Hodges, for defendant.

LUMPKIN P.J.

1. The ruling announced in the first headnote is directly supported by the decision of this court in Carrugi v. Insurance Co., 40 Ga. 135, and Insurance Co. v. Carrugi, 41 Ga. 660, both of which are cited approvingly in Insurance Co. v. Sabotnick, 91 Ga. 719, 17 S.E. 1026. In this connection, see, also, Clay v. Insurance Co., 97 Ga. 44, 25 S.E. 417, and Insurance Co. v. Searles (Ga.) 27 S.E. 779.

2. The evidence was conflicting upon the question whether or not the agent of the insurance company had notice of the prior insurance at the time he issued the policy sued upon in the present case. The solution of this conflict was a matter for the jury, and not for the presiding judge. Consequently, directing a verdict in the defendant's favor was erroneous.

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