184 Ga. 560 | Ga. | 1937
Southern Feed Stores Inc. took out a robbery-insurance policy with the Great American Indemnity Company of New York, through the Atlanta local agency, Oberdorfer Insurance Agency, in March, 1932. While the policy was in force a robbery occurred at the store of the insured in Atlanta, on September 19, 1932. The insured brought an action at law on this policy in the municipal court of Atlanta, and relied on waiver and estoppel, as to the definition of “premises” referred to in the policy. A jury returned a verdict in favor of the plaintiff. A new trial was refused, and the defendant took the case to the Court of Appeals. That couyt, on July 2, 1935, reversed the judgment overruling the motion for new trial. 51 Ga. App. 591.
The court sustained a demurrer to the petition, on the sole ground of laches, overruling all other grounds, and dismissed the action. The plaintiff excepted to this ruling, and the Supreme Court reversed the judgment, holding: “We do not think that the facts alleged show such laches on the part of the plaintiff as would prevent maintaining a suit upon the policy if it be reformed in accordance with the prayers of the petition.” Southern Feed Stores Inc. v. Great American Indemnity Co., 182 Ga. 442 (185 S. E. 723). The case went back to the superior court, and a trial resulted in a verdict and judgment for the plaintiff. A motion for new trial was overruled, and the insurance company excepted.
Ground 4 of the motion for new trial assigns error because the verdict is contrary to the evidence and without evidence to support it, for the particular reason that such evidence discloses that Oberdorfer Insurance Agency had no authority to agree to ’issue a robbery policy contrary to the standard form printed and used by the defendant in such cases. The evidence discloses that Oberdorfer Insurance Agency represented the Great Indemnity Company in writing insurance of the nature involved in this controversy. As a matter of fact the company received the premiums after the issuance of the policy by Oberdorfer Insurance Agency, and recognized the existence of the policy. As to whether the petition sets out a cause of action for reformation of the insurance policy because of an agreement of the provisions thereof between the insured and the agent of the insurance company, this is not now an open question. The insurance company filed a general demurrer to the petition, which was sustained on the sole ground of laches, and all other grounds of general demurrer were expressly overruled. The case was brought to the Supreme Court, and this court reversed the judgment, holding that the petition set out a cause of action and did not show such laches on the part of the Southern Feed Stores Inc., as would bar the action. It is further argued that the verdict was contrary to the evidence and without evidence to support it, for the reason that the custodian in charge of the premises at the time of the robbery was not such custodian as was contemplated by the policy, but was a watch
This suit was brought to reform the policy so as to make the term “premises” include the grounds around the building as well as inside the building, it being the contention of the plaintiff that such was the understanding and agreement with the agent who wrote the policy. It appears that the custodian of the building at the time of the robbery was just outside the door of the building, which was locked when he was held up at the point of a gun and bound and gagged and put under the building while the robbers entered the building and robbed it of merchandise. It is argued that the custodian could not have had the care of the building when he was outside. There is no merit in this contention, for the jury found in favor of the plaintiff on the question of reformation of the policy, which they were authorized under the evidence to find, that the term “premises” included the entire premises of the plaintiff, as well as “within the building,” and it appears that the custodian was in charge of the building when he was outside the door but on the grounds or “premises” of the plaintiff.
Ground 6 of the motion for new trial assigns error because the verdict was contrary to law, for the reason that the evidence showed that on May 23, 1934, the plaintiff filed in the municipal court of Atlanta a suit which resulted in a verdict for the plaintiff, and the judgment refusing a new trial was reversed by the Court of Appeals on the ground that the verdict was without evidence to support it; that the filing of the above case and the prosecution of the same to a conclusion without success constituted an adoption of the policy as written, and no suit for reformation could subsequently be filed. This ground is without merit, and was ruled upon in 182 Ga. 442, when this case was before this court on demurrer. This court held that “There was no such election of remedies in bringing the suit at law as to preclude the maintenance of the present suit for reformation of the contract sued on, and for judgment on the contract as reformed.” This court also ruled, in 182 Ga. 442, that the petition did not show such laches on the part of the plaintiff as would bar the
5. Ground 8 assigns error because the court refused to admit in evidence a copy of a suit in the municipal court of Atlanta, and all pleadings in said case, wherein Southern Feed Stores Inc. brought suit against the Great American Indemnity Co., to recover for the loss sustained under the policy here, involved. That suit resulted in a nonsuit. It is contended that this evidence was offered to show that the plaintiff had adopted the contract of insurance which it was sought to reform, by having filed such suit. This contention is without merit. As ruled in 182 Ga. 442, the petition for reformation of the policy set out a cause of action, and could be consolidated with the suit in the municipal court. The suit which was filed in the municipal court after the suit which was nonsuited involved the same questions as the latter suit; and if the plaintiff had the right to bring the suit for reformation, the prior suit in the municipal court which was nonsuited could throw no light on the questions involved in the suit for reformation. The court did not err in refusing a new trial.
Judgment affirmed.