48 Ga. App. 558 | Ga. Ct. App. | 1934
1. The verdict and judgment for the plaintiff on the policy of fire insurance sued upon being unsatisfactory to him, in that the verdict was directed in his favor for less than the amount claimed, and unsatisfactory to the defendant insurance company under its contention that a verdict was demanded entirely in its favor, each party, as was here done, had the right to make a motion for new trial independently of the other, and, on its being denied, to bring the judgment to this court for review, not merely by a cross-bill of exceptions, but by a main bill of exceptions. Burns v. Richardson, 145 Ga. 430, 432 (89 S. E. 418).
2. Dealing first with the bill of exceptions of the defendant insurance company, the contention in its brief that, even if the plaintiff had an insurable interest in the property, he could not have recovered more than the $270 paid by him in monthly installments on the purchase-price to the holder of the legal title, although such defense was pleaded in. its answer, was not stated in its motion for new trial or in its motion for the direction of a verdict. There being no specific exception that the plaintiff was entitled to recover only this amount, such a contention can not be considered under the general grounds. See Newberry v. Tenant, 121 Ga. 561 (49 S. E. 621); Rodgers v. Black, 99 Ga. 142 (25 S. E. 20); Gainesville Midland Ry. v. Jackson, 1 Ga. App. 632, 635 (57 S. E. 1007); Continental Aid Asso. v. Hand, 22 Ga. App. 726, 727 (97 S. E. 206).
• 4. The contention of the defendant company, made in its motion for new trial and for the direction of a verdict, that the contract of insurance sued upon was made with the person holding the legal title to the property and not with the plaintiff as the insured, was not. presented in its pleadings, but the answer admitted that the policy was “issued to petitioner — insuring him,” and did not question the effect of the endorsement, which was pleaded in the petition, and upon which the defendant now.relies, as changing the policy from a contract with the plaintiff to one with the other person. Moreover,-under the-testimony, it is not controverted that the agent issuing the policy and making the endorsement had full knowledge of the facts that the policy was intended by the parties to protect the interest of the plaintiff in the property, and referred in the endorsement to such interest through a “resale agreement,” and that the plaintiff paid and the defendant accepted from him the premium.
5. “A slight or contingent interest” or merely an “equitable” interest in property is sufficient in this State to constitute an insurable interest. Civil Code (1910), § 2472. The test 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.” It is not necessary that the policy shall specifically insure or define in .terms the nature of the
6. The plaintiff excepts to the direction of the verdict in his favor for only the $1025.16 difference between the $2000 of the defendant company’s policy and the $974.84 contributed by the defendant to the creditor of the plaintiff under the prorating clauses in all three of the policies on the property, upon the ground that the plaintiff was entitled to the benefit of the entire $2500 policy-issued by the Springfield Company to the creditor, and that the $2000 due by the defendant under its policy should be reduced by only $242.60 as its proper prorata part of the $424.53 excess due by it and the third insurer to the creditor, after applying the full $2500 of the Springfield policy on the creditor’s debt. The plaintiff insists that only the two companies issuing the $3500 of policies to him, with clauses making the proceeds first payable to the creditor as mortgagee or trustee, as his interest might appear, had any right of contribution. There is no merit in these contentions.
Judgment affirmed in loth cases.