The Underwriters' Agency v. Sutherlin

• Decision Date: 31 July 1875
• Citation: 55 Ga. 267
• Parties: The Underwriters' Agency, plaintiff in error. v. Willam T. Sutherlin, defendant in error.
• Court: Georgia Supreme Court

55 Ga. 267

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

Supreme Court of the State of Georgia

(Atlanta, July Term, 1875.)

Insurance. Statute of limitations. Principal and agent. Carriers. Perils of navigation. Before Judge Wright. Dougherty Superior Court. April Term, 1875.

This is the third time this case has been before this court. See 46 Georgia Reports, 652.

On March 6th, 1868, Sutherlin brought assumpsit against the Underwriters' Agency on a policy of insurance, for damages alleged to have been sustained by him on twenty bales of cotton shipped from Albany, Georgia, to the city of New York via Apalachicola, Florida. This risk was entered on an open policy issued by Y. G. Rust, defendant's agent, on January 20th, 1866. It was claimed by the plaintiff that he was entitled to recover $728 25, with interest from May, 1866, *that being the amount of damage to his cotton by becoming wet on the ends of the bales. The defendant pleaded as follows:

1st. The failure of the plaintiff to bring suit within twelve months from the time of the alleged loss as required by the condition of the policy.

2d. The general issue. 3d. That the damage, if any, was sustained from fresh water, to which it was exposed by the carelessness of plaintiff\'s agent, whilst the risk undertaken by the policy covered only the perils of navigation between point of shipment and final destination.

4th. That the defendant was discharged by the conduct of the plaintiff's agent at Apalachicola, in receiving the cotton and paying the freight thereon, thus releasing the carrier from his contract.

The evidence disclosed the following facts: The certificate of insurance handed to the plaintiff was as follows:

"No. 29. Underwriters' Agency. $4,000 00.

"Germania, Hanover, Niagara and Republic Fire Insurance

Companies of the city of New York.

"Albany, Ga., 20th January, 1866.

"This is to certify that William T. Sutherlin is insured for account of whom it may concern, under and subject to the conditions of policy No. 780, issued by the above named companies, in the sum of $4,000 00, each company bearing one-fourth of the risk taken, upon twenty bales of cotton marked W. T. S., on board cargo of the box No. 18, Saucer, master, at and from Albany, Ga., to Apalachicola, at the rate of 4 per cent., which premium of $160 00 is hereby acknowledged to have been received. Loss, if any, payable to W. T. Sutherlin or order, at New York, upon the return of this certificate. Assets, $3,000.0000.

(Signed) "Y. G. RUST, Agent."

"Countersigned A. S. Stoddard,

"General Agent, New York."

*Upon the back of this certificate was the following indorsement:

"This property is insured under this policy from Apalachicola to New York, by good steamers or sailing vessels, and includes twenty days fire risk at Apalachicola for the discharge of the box."

The policy upon which this certificate was based covered the perils of navigation. One of its conditions was that in case of loss, suit should be brought thereon within twelve months from that date.

When the cotton arrived in New York, about April 20th, 1866, it was ascertained that the ends of the bales had become wet from fresh water, thereby damaging the same to the amount of $728 25. The evidence does not disclose when or where this damage was done. The cotton was consigned to a Mr. Wood at Apalachicola. At this point it was unloaded from the box and placed on the wharf, whence it was shipped on the vessel which transported it to New York. Wood acted as the agent of the plaintiff in paying the freight and receiving the cotton. The plaintiff did not know that the policy of insurance contained a stipulation that suit should be brought within twelve months from the date of the loss, never having seen it. The reason alleged why suit was not sooner commenced was, that Rust, the agent of the defendant, assured the plaintiff that his claim was just, and in his opinion would be paid by the insurance companies after he had explained to them the facts in the case, and before he knew of their refusal the twelve months had expired. Rust was insisting that the claim was a just one and should be paid, whilst his principal in New York was denying liability upon the case made and demanding more proof.

On May 2d, 1867, J. J. Brown, the adjuster of the defendant, wrote to the plaintiff, among other things, as follows:

"We may also remark in this connection, that under the limitation clause contained in all policies, the enforcement of anyclaim of the date you mention would be impossible; if *you have a just demand upon us, however, it will, upon the presentation of proper proofs of loss, receive such consideration as it merits."

The jury found for the plaintiff. The defendant moved for a new trial because the verdict was contrary to the law and the evidence, and because the court...