14 Ga. App. 510 | Ga. Ct. App. | 1914
L. E. Black Sr. brought suit against the Eidelity-Phenis Eire Insurance Company of New York, alleging that the defendant issued to him a policy of insurance against loss by fire, covering certain household furniture, including pictures, engravings and their frames, beds and bedding, linen, wearing-apparel, plate, plated ware, .printed books, crockery, glass and ehinaware, kitchen utensils, watches, and jewelry, one pianoforte, one organ, one sewing-machine, and fuel, located in house No. 413. on the south side of River street, in Blakely, Ga.; that after the issuance of the policy, the plaintiff, being seriously ill, was removed from his residence, 413 River street, to the home of his daughter, on-the
The controlling question in this case is whether the removal of personal property, covered by a policy of insurance, which stipulates that the articles are insured “while located as described herein, and not elsewhere,” would void the policy. It has been often decided that location is generally material tb the contract of insurance, and of the very essence of the risk; since with yarying location the risk is apt to vary, and at all events insurers have the right to know the exact nature of the risk they are assuming, as they might decline a risk because of the amount of insurance already placed upon the building to which the property is removed, or upon its contents. “If the policy provides, as does the New York standard policy, that articles are insured ‘while located as described herein, and not elsewhere/ the insurance terminates upon the removal of the subject-matter of the policy.” 19 Cye. 741. “It is now, . . provided in most of the standard policies that the insurance is against loss to the property ‘while located and contained as described herein, and not elsewhere.’ . . This stipulation' has been held sufficient to confine the insurance to the property while in the location de
In the case of Simonton v. Liverpool &c. Insurance Co., 51 Ga. 77, the court held, that where one had a policy of insurance on a stock of merchandise in a certain building, and removed the goods to another house with the oral consent of the agent of the company, he could not recover under the policy for a subsequent loss by fire. The principal question apparently involved in that decision was whether a written contract of insurance could be altered by a subsequent agreement not in writing, and the fact that the policy was voided by the removal of the articles insured does not seem to have been questioned. In Western Assurance Co. v. Williams, 94 Ga. 128 (21 S. E. 370), it was held that such a policy would not be vitiated if it be sufficiently proved that consent to the removal of the insured property was given by a duly authorized agent of the company, and this consent was acted upon by the insured, notwithstanding a stipulation in the policy itself that no officer or agent of the company should have the power to waive any condition in the policy.
Counsel for the plaintiff in error insist that in any event the general demurrer should not have been sustained, since it appeared that some of the articles covered by the policy of insurance, which were alleged to have been lost by fire, consisted of certain wearing apparel, to wit: "suits of clothes, shoes, hats, etc.,” valued at $60. It does not appear whether any of the clothes, shoes, hats, etc.,
It’seems, from a careful study of these decisions and other authorities, that if the loss or damage to clothing covered by the policjr of insurance had occurred when the insured was actually, wearing the clothing, away from the house where it was "located” by the terms of the policjr, a recovery could be had for the amount of the damage, since the obvious purpose in having apparel is for wear, not only when in and around the premises described in the policy of insurance, but wherever the business or pleasure of the insured might legitimately and properly take him; but where it does not appear from the plaintiff’s petition that the clothing alleged to have been injured or destroyed was actually on his person at the time of its injury or destruction, but it appears that the clothing was at that time stored or deposited at a place other than the place described in the policy of insurance, which states that it is insured "while located and contained as described herein, and not elsewhere,” no recovery can be had for the loss.
The plaintiff in error insists that if he was entitled to recover the value of the wearing apparel destroyed, the general demurrer should not have been sustained, even though it be held that the removal of the furniture and other articles named in the policy voided it so far as the protection from loss of those articles is concerned; and this proposition is undoubtedly correct, under the ruling of this court in the case of Douglas, Augusta & Gulf Railway Co. v. Swindle, 2 Ga. App. 550 (59 S. E. 600). Under the ruling herein made, however, the entire policy was voided by the removal of the personal property therein described; and hence the principle referred to does not apply. So far as concerns the furniture and articles other than clothing, mentioned in the policy of insurance, it seems to be well settled by the general weight of authorities in the various States, as well as inferentially held in the cases in 51 Ga. and 94 Ga., supra, that the removal thereof from the original location, where the policy contains the words hereinbefore mentioned, would absolutely destroy the protection afforded thereby, or void the policy as to the property so removed, in the absence of proper consent from an authorized agent or officer of the company.
Judgment affirmed.