5 Ga. App. 731 | Ga. Ct. App. | 1909
Lead Opinion
I. F. Peebles & Company, a partnership composed of I. F. Peebles and his mother, brought suit- against the American Insurance Company, on a policy of fire-insurance, covering a one-story brick building in the town of Butler, Georgia, in which the plaintiffs carried on a general merchandise business. The fire, which resulted in the total destruction of the building, occurred on April 6, 1906, and originated in another part of the town. The day after the fire the insured gave the company notice in writing of their loss, and requested the customary blanks on which
The alleged newly discovered evidence would not authorize a new trial. St is not necessarily inconsistent with plaintiff’s testimony -at the trial, and is of slight probative value, consisting merely •of a deed dated in 1883, from Charlton G. Ogburn to I. F. Peebles, and a deed dated November 23, 1907, from I. F. Peebles to Mrs. S. A. Peebles, his mother, conveying an undivided one-half interest in the land in question, together with the certificate of the clerk of the superior court to the effect that the latter deed had been lodged with him for the purpose of being recorded. The Ogburn deed has been of record in Ta}dor county, Georgia, since 1883, and could easily have been discovered by the exercise of proper diligence prior to the trial. The deed from Peebles to his mother, given after the trial in the court- below, is not inconsistent with the testimony delivered at the trial, tó the effect that the deed of I. F. Peebles & Company to the property had been lost, and that the new deed was merely to take the place of the lost one. Furthermore, a proper notice to produce would have put the defendant in possession of the plaintiffs’ muniments of
Judgment affirmed,
Rehearing
ON MOTION EOR REHEARING.
It is proper, perhaps, that we should notice that .ground of the motion for rehearing in which it is insisted that the judgment refusing a new trial should be reversed because of the error of the trial, judge in directing the verdict; for the reason especially that it is for the jury to say in every case whether the proofs of loss are filed within a reasonable time. It is insisted that the court has overlooked the ruling in Southern Fire Ins. Co. v. Knight, 111 Ga. 626 (36 S. E. 822, 52 L. R. A. 70, 78 Am. St. R. 216), in which it is held that “it was a question for the jury whether a reasonable time for furnishing the proofs had elapsed between the date the fife occurred and the date that the proofs ■of loss were submitted.” And' it is argued that, as the question ■as to what was a reasonable time was not submitted to the jury in the present case, to uphold the error of the trial judge in directing a finding upon that point would be to attempt to reverse the decisions of the Supreme Court, and to permit judges to invade the province of the jury, thus opening wide, the door to fact-finding judges. The fact that this court did not overlook the decision in the Knight case is evidenced by the fact that it is cited in the original opinion, as authority for our decision upon the point" involved. We did not go very fully into the subject, because we' apprehended that reference to the Knight ease itself would dispense with the necessity of repetition of the views therein expressed. Bor this reason, in quoting from the Knight case that “what would be a reasonable time is to be determined by the particular facts of each case,” we inserted as our own, after the word “facts,” the words “and circumstances,” instead of pursuing the text of the opinion in the Knight ease, and quoting the remainder
In the Knight ease, as we understand it, it is held, as a matter of law, that any time which allows the company sixty days, before the termination of the twelve months in which suit may be brought, to contest the justness of the claim, may be a reasonable time. There was, therefore, under the evidence, no issue of fact to sub
Another point urged in the motion for rehearing, and to which we did not refer in the opinion, though it was not overlooked in reaching our decision, was the exception taken to the amendment of the plaintiffs, and the evidence thereunder in regard to the character of the house. As to this we need only say that, while the policy described the building as' a brick building, and the evidence showed it to have been largely composed of concrete blocks, there was no error in the allowance of the amendment, or in the .admission of the testimony in accordance with the amendment. It was not, as is insisted, a case where the company insured one building and is held liable for another, of an entirely different kind. No written application for a policy was made by the insured. The agent of the company who wrote the policy saw the building before the issuance of the policy, and knew it was largely ■constructed of concrete blocks. There was nothing to deceive him .as to the character of the building; it spoke for itself, and his