36 Ga. App. 497 | Ga. Ct. App. | 1927
The policy of automobile fire-insurance sued on, on which the plaintiff obtained a judgment for $1,500 as the amount of the loss, and $315 damages, contained the following provisions: “The entire policy shall be void unless otherwise provided by agreement in writing added hereto, if the interest of the assured in the subject of this insurance be other than unconditional and sole ownership. Unless otherwise provided by agreement in writing added hereto, this company shall not be liable for loss or . damage to any property insured hereunder while encumbered by any lien or mortgage.” It appears from the record that the plaintiff, C. D. H. Williamson, in good faith, acquired his
While, under the law of the code, an insurable interest is defined as “some interest in the property or event insured,” and a “slight or contingent interest is sufficient, whether legal or equitable” (Civil Code of 1910, § 2472), such an insurable interest is not to be taken as synonymous with the sole and unconditional ownership required by the terms of the policy; nor does the rule as to an insurable interest dispense with the contractual requirement as to liens upon the property constituting the subject-matter of the risk. It appears to be the general rule that when the. subject-matter of insurance is personal property, and the vendee is in possession
The policy of insurance sued on provided as follows: “In case the assured and this company shall fail to agree as to the amount of loss or damage, each shall, on the written demand of either, select a competent and disinterested appraiser.' The ap
The amendment sets forth, as an additional reason why such
Since, under the above-quoted provisions of the policy and the agreement for appraisement entered into by the parties, the appraisers designated were authorized to select an umpire, and it appears that they exercised that authority, and the umpire so selected signified his acceptance of the appointment by taking the oath, thus becoming a member of the appraisal body, in the absence of a refusal on the part of the umpire to proceed with the appraisal, or his incapacity to do so, thus creating a vacancy in his office, the appraisers were without authority to substitute another person as umpire in his stead, and any award participated in and controlled by the vote of such substituted umpire was necessarily void. The evidence objected to by the defendant, introduced for the purpose of showing that the plaintiff had not agreed to such substitution, was relevant to show a lack of ratification of such illegal substitution.
The defendant does not set up as a ground of defense the inability of the plaintiff to sue on the policy prior to the consummation of a legal appraisement of the loss. It is the general rule that the defendant is not entitled to the benefit of any defense
It is urged that the award of damages included in the judgment against the defendant under section 2549 of the Civil Code was not authorized by the allegations of the plaintiff’s petition or by the proof submitted. This section provides: “The several insurance companies of this State, and foreign insurance companies doing business in this State, in all cases when a loss occurs, and they refuse to pay the same within sixty days after a demand shall have been made by the holder of the policy on which said loss occurred, shall be liable to pay the holder of said policy, in addition to the loss, not more than twenty-five per cent, on the liability of said company for said loss; also, all reasonable attorney’s fees for the prosecution of the case against said company: provided, it shall be made to appear to the jury trying the same that the refusal of the company to pay said loss was in bad faith.” The provision for damages, being in the nature of a penalty, must be strictly construed, and in order for damages to be authorized it must appear that the company, in bad faith, refused to pay the claim within sixty days after a demand had been made. In the case of New Zealand Fire Insurance Co. v. Brewer, 29 Ga. App. 773 (8) (116 S. E. 922), it was held that “under the provisions of section 2549 of the Civil Code (1910), the liability of the insurer for attorney’s fees and damages could not accrue until.the lapse of
In the instant case it appears from the petition that the fire occurred on December 18, 1922; that proof of loss was submitted within sixty days thereafter, on February 16, 1923, and that after a refusal, on February 17, 1923, to pay tlie loss, suit was instituted on April 18, 1923. It thus appears that while the plaintiif might have properly instituted suit after sixty days from the filing -of the proof of loss on February 16, in order to recover damages it must appear that after the right to. exact present payment had accrued, a demand was made and payment persistently refused, in bad faith, for another sixty days. The suit having been instituted, however, prior to such persistent refusal to respond to any demand made at a time when a demand for present payment could be properly made, the award of damages is unauthorized and should be stricken from the judgment.
Counsel for the defendant in error assumes the attitude that “the employing of an adjuster, the attempt to agree on the loss by the insured and the adjuster, the agreement of appraisal, the selection of appraisers and an umpire, and the actual making of a fraudulent award, is ample evidence of a demand having been made upon the insurance company for payment under the policy.” It does not appear from the petition that any demand, as such, was ever made, but even if the facts and circumstances mentioned could be taken as equivalent to impliedly alleging a demand, the mat
Since the recovery of damages was unauthorized, but the verdict and judgment were not otherwise illegal for any of the reasons urged, the judgment overruling the motion for a new trial is affirmed, upon condition that the plaintiff will write off the recovery as to damages at the time the remittitur is made the judgment of the court below; otherwise the judgment will be reversed.
Judgment affirmed on condition.