52 Ga. App. 603 | Ga. Ct. App. | 1936
The Farmers Mutual Fire Insurance Company of Georgia issued and delivered to G. W. Pollock a policy of fire insurance in the sum of $1,000, covering a wooden tenant-house, which was destroyed by fire on December 3, 1933.
Upon failure of the insurer to pay the loss claimed, Pollock filed suit on April 34, 1933, alleging that he “owned an insurable interest” in the. house. The defendant filed a demurrer on the ground that the petition did not “disclose plaintiff’s title or interest” in the property, the allegation that he “owned an insurable interest” being a conclusion. The defendant’s answer denied
1. “The proper judgment on a special demurrer going only to the meagerness of the allegations of a pleading is not a judgment sustaining the demurrer and dismissing the pleading, but a judgment requiring the pleader to amend and make his pleading more certain in the particulars wherein he has been delinquent; and then, if he refuses to amend, the pleading may be dismissed, if the delinquency relates to the entire defense set up in the pleading.” Griffeth v. Wilmore, 46 Ga. App. 96; Wardlaw v. Ex. Com. 47 Ga. App. 595 (3) (170 S. E. 830); Broyles v. Haas, 48 Ga. App. 321 (6) (172 S. E. 742); Moseley v. Equitable Life Assurance Society, 49 Ga. App. 424 (3) (176 S. E. 87). The demurrer here being special, the judge properly sustained it with leave to amend to meet it.
2. The judge had authority in vacation to determine the demurrer to the petition. Code of 1933, §§ 24-2618, 24-2619. When he did so and orally announced his judgment sustaining the demurrer, with leave to the plaintiff to amend, and thereafter inadvertently signed an order not in conformity with the previous oral judgment, he had authority later so to amend the order as to make it speak the truth and to conform to the former oral judgment. So where it appears that the subsequent written order of September 18, 1933, was not in conformity with the previous oral order of August 19, 1933, as required by law, the judge had authority at the subsequent term,, in proceedings brought for that purpose, after due notice to the defendant and a hearing, to correct the order inadvertently signed as to the judgment on the demurrer, so that it should conform to the actual oral judgment previously rendered. Pulliam v. Jenkins, 157 Ga. 18 (121 S. E. 679); Ellis v. Clark, 173 Ga. 618, 623 (160 S. E. 780); Wright v. Wood, 178 Ga. 273 (2) (173 S. E. 138); Code, §§ 24-104, par 6, 81-1201. The order of September 30, 1933, sustaining the original special
3. “To sustain any contract of insurance, it shall appear that the insured has some interest in the property . . insured, arid such as he represented himself to have. A slight or contingent interest, whether legal, or equitable, shall be sufficient.” Code, § 56-812. It is sufficient if the insured holds such a relation to the property that its destruction by fire would result in pecuniary loss to him. “The test of insurable interest'in property is whether the insured has such a right, title, or interest therein, or relation thereto, that he will be benefited by its preservation and continued existence, or suffer a direct pecuniary loss from its destruction or injury by the peril insured against.” A mortgagee or one succeeding to the interest or rights of a mortgagee in the mortgaged property has an insurable interest therein. New Jersey Ins. Co. v. Rowell, 157 Ga. 360 (121 S. E. 414), and cit; Hurley v. National Ben Franklin Fire Ins. Co., 46 Ga. App. 515, 517 (167 S. E. 917); Hagan v. Hudson Ins. Co., 48 Ga. App. 558, 563 (173 S. E. 477). The policy here involved provided that the insurer should not be released from any obligation in case of loss or damage by fire because of the defective title of the insured to the property; and even though the insured was not the legal owner, if he had an insurable interest, the policy would not be void and the insurance
4. The judge did not err in charging the jury: "To sustain any contract of insurance, it must appear that the assured has some interest in the property or event insured, and such as he represented himself to have. A slight or contingent interest, however, is sufficient, whether legal or equitable. It is now well established that every one who has no title, legal or equitable, in the property,
5. Nor was it error to-instruct the jury “that the policy of fire insurance in question, and which is the foundation of the plaintiff’s cause of action, contains the provision that the defendant company shall not be released from any obligation in case of loss or damage because of liens, mortgages, or defective titles to property; but when it shall appear that the insured is not the rightful or legal owner of the within property, then shall the insurance, or such part of same as may not belong to the insured, be paid to the proper owner.” This was a provision in the defendant’s own contract of insurance, by which it was bound: See Farmers Mutual Fire Ins. Co. of Ga. v. Harris, supra.
6. Under the contentions of the defendant and under the facts of this case, it was not error for the, judge to charge: “Although it is the law that every application for insurance must be made in the utmost good faith, and that verbal or written representations of facts by the assured to induce the acceptance of the risk, if material, must be true, it is not every false representation that will avoid the policy. In order for the defendant company to defeat their liability under the policy in the present instance, it would be necessary to show in the first instance that the statement made was material to the acceptance of the risk; secondly, that the material representation made was false; and thirdly, that the representation was made upon the part of the plaintiff with the intent to defraud.” See Mutual Benefit Health &c. Asso v. Bell, 49 Ga. App. 640, 643 (176 S. E. 124), and cit.; Lee v. All States Life Ins. Co., 49 Ga. App. 718(4-6) (176 S. E. 811). It is true that as to .actual misrepresentation of a fact material to the risk there need not be any intent to wrong or defraud the insurer. Mutual Benefit Health &c. Asso. v. Bell, supra. However, the issue here was not the bona fides of the representation made by the plaintiff, but whether it was true or not. The plaintiff stated that he was the owner of the property insured, subject only to an outstanding security deed. In view of the provisions of this policy, unlike most, policies, that it was not void where the insured did not have the legal title or had a defective title etc., and in view of the evidence, the jury could properly find that the insured did not make to the agent of the defendant a false statement which was material to the risk. He
7. It follows that the court did not err in instructing the jury that “the recital of ownership made to procure a policy of insurance is not such a technical expression as amounts"to a warranty; and if you find in this case that Pollock, the plaintiff, was in possession of the property insured, claiming the same as a gift from his wife, and that such a gift of the property was actually made to Pollock prior to the issue of the policy in question to him, and that Pollock held the property subject only to a security deed in favor of a third party, such an interest in the property will support a verdict in favor of him, unless you further find that he procured the policy in question under a false representation as to the nature of his interest, and that such representation was made with intent to defraud the company.”
8. The evidence authorized the verdict, and the judge did not err in overruling the motion for new trial.
Judgment afirmed.