U.S. Fidelity & Guaranty Co. v. Corbett
| Decision Date | 20 July 1926 |
| Docket Number | 16961. |
| Citation | 134 S.E. 336,35 Ga.App. 606 |
| Parties | UNITED STATES FIDELITY & GUARANTY CO. v. CORBETT. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Under a policy of insurance covering "actual loss or damage" by collision to an automobile, and stipulating that "in any event the company shall be liable only for the actual cost of repairing, or, if necessary, replacing the parts damaged or destroyed," the company's principal or primary liability, where liability exists, is for the difference between the value of the property immediately before the injury and its value immediately afterwards; the stipulation that the liability shall not exceed the cost of repair or replacement being a subordinate provision, to be pleaded defensively, with facts showing its applicability, if the company would reduce or limit its liability by reason thereof. In a suit upon the policy, to recover an amount appearing to have been determined by appraisers to be the amount of loss measured as above indicated, the petition was not subject to demurrer upon the ground that it showed that the appraisers had applied a measure of liability different from that contemplated by the policy; it not appearing that the insurer had sought to have the appraisers estimate the loss in accordance with such special provision.
It was not essential to the validity of the appraisement, which the parties sought to have made in accordance with the policy that the submission to the appraisers should have been in writing.
(a) It sufficiently appeared from the allegations of the petition construed in the light of the policy, that the parties had a difference, namely, as to the amount of the loss, and that this was the matter submitted to the appraisers.
(b) The appraisement was not vitiated because certain distinct parts thereof were not responsive to the submission, nor because it did not set out the facts upon which it was predicated.
The allegations made for the purpose of recovering attorney's fees and damages were not open to attack by special demurrer upon the ground that they were mere conclusions of the pleader.
The second count of the petition sought a recovery solely upon the appraisement or award. Under the terms of the policy and the submission to the appraisers, the appraisement was neither a statutory nor a common-law award. It could have amounted to nothing more than a contractual method of ascertaining the loss, settling no other fact, and could not alone be the basis of a judgment or cause of action. The court erred in not sustaining the general demurrer to the second count.
Error from Superior Court, Colquitt County; W. E. Thomas, Judge.
Suit by R. J. Corbett against the United States Fidelity & Guaranty Company. Judgment for plaintiff, and defendant brings error. Affirmed in part; reversed in part.
Where under terms of automobile policy and submission of loss to appraisers, appraisement was not an award, petition seeking recovery solely on appraisement or award held subject to general demurrer.
The United States Fidelity & Guaranty Company issued to R. J. Corbett, a policy of insurance on an automobile, covering "actual loss or damage" thereto "caused solely by accidental collision with another object." The policy contained, among others, the following provisions:
The automobile was injured by an accidental collision with another object, and the insured brought suit against the insurer to recover the amount of loss. The petition was in two counts. The first count alleged that the value of the automobile immediately before the injury was $3,407, that its value immediately thereafter was $650, and that the company was liable to the plaintiff for the difference, $2,757. The further allegations of this court were as follows:
"Petitioner having submitted to the defendant a statement of the amount of loss and damage claimed by him to have been sustained under said policy by reason of said collision, the defendant having refused to pay the same, and the petitioner and the defendant having been unable to agree or to satisfactorily determine the amount of such loss or damage," the defendant advised its agent at Moultrie, Ga., that the amount of the loss must be determined by appraisers as provided in the policy, and instructed such agent to so notify the plaintiff, in order that he might select an appraiser to act with an appraiser selected by the defendant. The plaintiff thereupon selected an appraiser, and informed the defendant of his action, and the two appraisers thus chosen selected a third appraiser under the provisions of the policy. The appraisers, after due notice to the parties of the time and place of their meeting, "investigated the extent of the loss and damage to petitioner's automobile, determined the amount thereof, and made a written award or finding in which they determined and stated that the sound value of petitioner's automobile, on the date of said wreck, was $3,407, and that the value of the automobile, in its wrecked condition, was $650, and that the amount of loss and damage sustained by petitioner was $2,757."
This allegation was in accordance with the appraisers' finding as to the amount of the loss, as shown by a copy of their report attached to the petition. The report undertook to determine other matters, such as the manner in which the car should be repaired, the time when the repairs should be completed, the right of inspection, and acceptance by the assured, after its repair, should the company elect to repair it.
A few days after the appraisers made and submitted their report, "the defendant, in writing, definitely declined to pay petitioner the aforesaid amount of loss and damage, and advised that it would not even consider said amount of loss and damage so determined and ascertained in the manner aforesaid, nor would it pay to petitioner said amount as the amount of loss and damage claimed by him to have been sustained under said policy and caused by said collision." Plaintiff has "performed and complied with all of the conditions and requirements imposed upon him by said policy." The defendant is indebted to plaintiff in the sum of $2,757, as the actual loss or damage to said automobile by reason of said collision," and in the further sum of $37.50 "paid by petitioner in saving, recovering, and protecting said automobile [from further loss and damage] immediately following said accident," which expense the plaintiff incurred at the direction of the defendant's agent and in accordance with the provisions of the policy. The defendant has failed and refused to pay the plaintiff "said amounts of loss and damage." The defendant's "denial or liability and its failure and refusal to pay said amounts were in bad faith and without legal excuse or justification, and *** on account of said conduct of defendant it was necessary for petitioner to employ counsel to maintain and prosecute this suit in order to enforce petitioner's rights under said policy." The defendant is therefore liable to the plaintiff for attorneys' fees and damages in a stated amount, in addition to the principal loss and damage and interest thereon. The second count of the petition contained substantially the same averments as the first count, but was expressly made a suit on the "award." The plaintiff amended the first count by adding the following:
"That the actual loss and damages to said car represents and consists of the amount necessary to spend for the actual cost of repairing and replacing the various parts of said automobile which were destroyed by said collision; that the same amounts to at least $2,757, that the plaintiff lists and gives herewith an itemized statement, showing the items, parts, and articles and the cost of each, together with the other cost required to be expended, necessary for the actual cost of replacing and repairing the damaged and destroyed parts of said automobile; and that plaintiff attaches hereto said list or statement, which is marked 'Exhibit C' and made a part of this paragraph."
The exhibit was attached and gave the information stated. There was a further amendment both to the first count and to the second count, but that has been merged in the above statement.
The defendant, prior to the amendments, demurred to each count of the petition both generally and specially. After the amendments the demurrers were renewed and overruled, and the defendant excepted. It is unnecessary to set forth the several grounds of the demurrer in detail. They are sufficiently indicated in the questions dealt with in the opinion.
Hoyt H. Whelchel, of Moultrie, for plaintiff in error.
J. J. Hill, of Pelham, and J. O. Gibson, of Moultrie, for defendant in error.
1. In an action by the owner of personal property, such as an automobile, to recover for loss or damage sustained...
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