Theo v. National Union Fire Ins. Co., s. 37548
| Decision Date | 18 March 1959 |
| Docket Number | No. 2,37570,Nos. 37548,s. 37548,2 |
| Citation | 109 S.E.2d 53,99 Ga.App. 342 |
| Parties | Charles THEO et al. v. NATIONAL UNION FIRE INSURANCE COMPANY. NATIONAL UNION FIRE INSURANCE COMPANY v. Charles THEO et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The allegations of count 1 of the petition showed the occurrence of a loss covered by the policy of fire insurance sued on, and the timely filing of proof of loss, and that count was not subject to the general demurrer interposed by the defendant.
2. Count 2 of the petition was subject to the general demurrer since it alleged facts showing a loss from the insured building due to theft or burglary which was not covered by the policy sued on.
3. The trial court did not err in refusing to try separately the issues raised by the 'plea in abatement', since such plea, when viewed in the light of the allegations of the amended petition, went to the merits of the whole case.
4. As to count 1 of the petition, to which a demurrer had been interposed and overruled, it was error for the trial court to enter a judgment dismissing the case where the evidence introduced with respect thereto tended to sustain the allegations and show that the plaintiff was entitled to recover some amount on account of loss covered by the insurance policy sued on.
Charles Theo and Mrs. Emily Panos sued National Union Fire Insurance Company in two counts to recover for loss and damage to two houses allegedly covered under the provisions of a certain fire insurance policy issued by the defendant which was attached as an exhibit to the petition. Insofar as is material, the petition alleged that the plaintiffs owned jointly two houses located in Atlanta, Georgia, at 3725 Gilbert Road, and the second located on Poole Creek Road immediately behind the Gilbert Road house; that these houses were covered each in the amount of $4,000 (which amount was later raised to $6,000), by the exhibited policy of insurance; that said policy was in full force and effect, all premiums having been paid thereon and that it insured the houses for loss due to fire, burglars, vandalism and malicious mischief and other hazards as shown by the policy; that from July 20, 1957, to August 20, 1957, the house located on the said Poole Creek Road was occupied and being rented by Charlie Waters. On or about August 20, 1957, the said Waters moved out of the Poole Creek Road house into the Gilbert Road house; that during the period of August 20, 1957, to September 18, 1957, the said Poole Creek Road house was vacant, and during the said vacancy the said house was completely torn down and destroyed by vandals, the names of which plaintiffs do not know. The walls were knocked and torn down by vandals causing the roof to fall in resulting in the house being totally destroyed.
The petition further alleged that the plaintiff Theo was out of the city from March 25, 1957, until October 18, 1957, and that when he returned he was informed by Mrs. Panos that the Poole Creek Road house had been destroyed, and that on making a quick check of the property, he found this to be true, and on further checking the Gilbert Road house he found that 'all the bathroom fixtures, kitchen sink and plumbing, electric hot water heater, electric refrigerator, 12 window frames, [and] 50-foot length of sewer pipe [were] missing;' that he advised the insurance agency and the agent informed him that he would report the loss to the defendant; that thereafter, on or about April 8, 1958, the defendant sent its adjuster to the plaintiff Theo's house, and that while he was there the adjuster secured from the plaintiff Theo a written affidavit under oath informing the plaintiff that such written statement was a proof of loss, and that if any other proof was necessary, he would let him know; that the defendant now has possession of the only copy of said proof at its home office; that the adjuster went to the scene of the loss and made an investigation thereat, and, thereafter informed the plaintiff Theo that he would forward the report of his investigation to the home office of the defendant company; that, thereafter, on May 26, 1958, the plaintiff Theo was informed by the company's agent that the defendant company had denied the claim and that the defendant refused to pay any amount; that the plaintiffs ware the owners of the Poole Creek Road house at the time the vandals destroyed it and had an insurable interest in it, and that the actual cash value of the property at the time of its destruction was $4,000; that at no time did the defendant or any of its agents or employees request any further proof of loss than the one given by the plaintiff Theo on or about April 8, 1958. Count 1 sought to recover for the damage to the 'Poole Creek Road' house and Count 2 for the loss of the various fixtures alleged to have been 'missing' from the 'Gilbert Road house.'
The policy attached to the petition provided coverage on the houses insuring them against perils, among others, of , and, With respect to coverage F, the policy contained a limitation and exclusion of ' any loss by pilferage, theft, burglary or larceny,' and with respect to coverage F and G, it provided that the company should not be liable if the described property had been vacant beyond a period of thirty consecutive days immediately preceding the loss.
The defendant filed what was denominated a 'Plea in Abatement' alleging that at no time prior to instituting the suit against the defendant did the plaintiffs file proofs of loss as required by a quoted provision of the policy, and contending that the filing of the proofs of loss within 60 days of the date of the loss was a condition precedent to a suit on the policy. This plea does not appear from the record ever to have been expressly passed on by the trial court. The defendant also filed general demurrers to the petition which were renewed after amendment. The trial court overruled the demurrers on all grounds, and the case went to trial, and after the plaintiffs had introduced the evidence, the defendant moved the court to dismiss the action on the ground that under the evidence and pleadings and provisions of the insurance policy sued on and the applicable law, the plaintiffs were not entitled to recover. The trial court granted this motion and dismissed the case. The assignment of error in the main bill of exceptions is to this final judgment, and in a cross-bill of exceptions the defendant assigns error on the overruling of its demurrers and on the failure of the trial court to grant its demand for a separate trial on the issue raised by the so-called plea in abatement.
Grady E. Rozar, Atlanta, for plaintiff in error.
Smith, Field, Doremus & Ringel, Palmer H. Ansley, H. A. Stephens, Jr., Atlanta, for defendant in error.
1. The policy sued on covered all direct loss to the property caused by vandalism and malicious mischief and by collapse of the building or any part thereof. The allegations of the first count of the petition as amended were sufficient to show a valid and subsisting contract which created a duty on the part of the defendant to pay for any loss of damage occasioned by these causes, and alleged facts showing the occurrence of a loss with respect to the building located on Poole Creek Road covered by the policy sued on. As was said by Judge Parker in J. C. Pirkle Machinery Co. v. Lester, 79 Ga.App. 512, 515, 54 S.E.2d 298, 300, ...
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