Western Fire Ins. Co. v. Peeples, 37380
| Decision Date | 17 October 1958 |
| Docket Number | No. 37380,No. 2,37380,2 |
| Citation | 106 S.E.2d 91,98 Ga.App. 365 |
| Parties | WESTERN FIRE INSURANCE COMPANY v. G. E. PEEPLES |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. An oral agreement to arbitrate a fire loss according to the policy provisions, when entered into between the insured and an insurance adjuster of the defendant duly authorized to settle the loss, will toll the period of limitation for filing suit stated in the policy during the pendency of such agreement. The evidence here was sufficient to authorize a finding that such agreement had been made, and that it had not been subsequently revoked or abandoned by the parties.
2. Where an issue is raised by the pleadings and there is some slight evidence in support thereof, it is not error for the trial court to charge on the subject.
3. Special grounds of a motion for new trial which are not complete and understandable within themselves within the meaning of Code, § 6-901 will not be considered by this court.
This action on a policy of fire insurance was originally brought in the City Court of Brunswick and appears as Peeples v. Western Fire Ins. Co., 96 Ga.App. 39, 99 S.E.2d 349, where this court reversed the judgment of the trial court sustaining a general demurrer to a petition in all respects substantially identical with the one here and to which reference is accordingly made as to the material allegations of this petition. The plaintiff subsequently dismissed that action and brought it over in the Superior Court of Glynn County. The defendant filed general and special demurrers which were overruled, and error is assigned on this judgment. The case then proceeded to trial and resulted in a verdict in favor of the plaintiff in the face amount of the policy, upon proof that the building in question was totally destroyed, that the insurance policy was in the sum of $2,500 and that the value of the house before its destruction was between $3,000 and $4,000, according to a witness for the plaintiff (the amount, however, being disputed by witnesses for the defendant). A motion for directed verdict was denied, and subsequently the defendant filed a motion in the alternative for judgment notwithstanding the verdict or a new trial, the latter motion being amended by the addition of 5 special grounds. Error is assigned on the denial of this motion and on the demurrer rulings.
Gowen, Conyers, Fendig & Dickey, Chris B. Conyers, Brunswick, for plaintiff in error.
W. A. Wraggs, Brunswick, for defendant in error.
1. The main issue in this case, as raised by the only special demurrer insisted upon and also by the general grounds of the motion for new trial and the motion for a judgment notwithstanding the verdict is whether the plaintiff is barred from prosecuting his action because it was not commenced within 12 months of the loss. It is undisputed that the house burned down on May 24, 1955; this action was not filed until August 29, 1957. The policy contains a provision as follows: 'No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.' The appraisal provision in the contract is to the effect that in case of failure to agree 'on the written demand of either, each shall select a competent and disinterested appraiser,' those two selecting a third, and the three appraise the loss, the result to be binding upon the parties. The petition alleged and the plaintiff's testimony, corroborated to some extent by that of his wife, affirmed that George Stacey as salesman wrote the policy and received the first notice of the loss; that Mr. Carson, an insurance adjuster representing the defendant, came out soon afterward; that he made a settlement offer of $1,500 which was refused; that he then The plaintiff agreed with Carson that this would be done, and he thereafter appointed his appraiser, who testified on the trial as to the value of the burned premises. Nothing further was heard from the insurance company and the plaintiff then wrote the insurance company that 'if they didn't pay it in 10 days I would get a lawyer.' He then testified that a man from Atlanta representing the defendant company called; that he had on him credentials and a copy of the letter which the defendant had written the insurance company; that this man, whose name he did not know, said it would be 'fixed up in a few days' and that 'whatever arrangements me and Mr. Carson made would be okay.' Later the defendant again called Carson's office in Brunswick, was told not to worry, that it would 'get straight', and eventually, when nothing further was done, he turned the claim over to his attorney. While the petition alleges that the Atlanta representative of the insurance company was a vice-president, the evidence demands a finding that this was not so. Other testimony of the plaintiff was controverted, making an issue of fact both as to the amount of the loss and the question of whether the parties had entered into an agreement of appraisal.
In Peeples v. Western Fire Ins. Co., 96 Ga.App. 39(2), 99 S.E.2d 349, 350, it was held: 'An agreement to have an appraisal made by arbiters will toll the period of limitation stated in the policy, and the period of limitation will not run while such agreement is pending.' This agreement there was alleged to be an oral agreement. The policy provision is that when a written demand is had there shall be proceedings for appraisal. Thus, before acceptance, the offer to arbitrate in order to be binding must be in writing, but where an oral offer is made and accepted, both parties having agreed to abide the contract provision, it becomes just as effective as though the original offer had been written, since the contract does not provide that the assent be in writing. But the plaintiff in error contends that Carson, being an adjuster, had no authority to suggest or agree that an appraisal be made, under the authority of Underwriters' Agency v. Sutherlin, 55 Ga. 266, 267 as follows: ...
To continue reading
Request your trial
-
O'Donnell v. Continental Casualty Company
...such agreement is pending.' This conclusion was repeated in another case arising out of the same controversy, Western Fire Ins. Co. v. Peeples, 98 Ga.App. 365, 106 S.E.2d 91. The reason for this rule is stated more fully in Killips v. Putnam Fire Ins. Co., 28 Wis. 472, 482, 9 Am.Rep. 506, 5......
-
Mutual Ben. Health & Acc. Ass'n of Omaha v. Hickman
...with the requirements of Code, § 6-901. Ready-Mix Concrete Co. v. Rape, 98 Ga.App. 503(6), 106 S.E.2d 429; Western Fire Ins. Co. v. Peeples, 98 Ga.App. 365(3), 106 S.E.2d 91. Exception (e) is subject to, and rendered incomplete, because the ground does not set forth literally or in substanc......
-
Assurance Co. of America v. Bell
...Agency v. Sutherlin, 55 Ga. 266(2). This includes every act within the apparent scope of his authority. Western Fire Insurance Co. v. Peeples, 98 Ga.App. 365, 368, 106 S.E.2d 91; Couch on Insurance 2d, Vol. 4, 262 ts 26:326. Where an authorized adjuster furnished by the insurance company fo......
- Akins v. Beaver, 37397