27767 | Ga. Ct. App. | Oct 21, 1939
1. A contract of insurance, to be binding, must be in writing. Code, § 56-213; Atlas Assurance Co. v. Kettles, 144 Ga. 306, 308 (87 S.E. 1" date_filed="1915-11-13" court="Ga." case_name="Atlas Assurance Co. v. Kettles">87 S. E. 1); Mitchiner v. Union Central Life Ins. Co., 185 Ga. 194, 195 (194 S.E. 530" date_filed="1937-09-16" court="Ga." case_name="Mitchiner v. Union Central Life Insurance">194 S. E. 530).
2. A contract of insurance can not be partly in writing and partly in parol. Athens Mutual Ins. Co. v. Evans, 132 Ga. 703 (4) (64 S.E. 993" date_filed="1909-06-18" court="Ga." case_name="Athens Mutual Insurance v. Evans">64 S. E. 993); Mitchiner v. Union Central Life Ins. Co., supra; Newark Fire Ins. Co. v. Smith, 176 Ga. 91, 93 (167 S.E. 79" date_filed="1932-12-14" court="Ga." case_name="Newark Fire Insurance v. Smith">167 S. E. 79).
3. Applying the above principles of law to the facts of the present ease, where suit was brought on a policy of insurance to recover for the loss of a building destroyed by a tornado, but where the evidence demanded a finding as a matter of law that the building destroyed was not in fact included in the coverage of insurance, and where, even if a jury might be authorized to find that it was the intention of the contracting parties that such building was to be included in the risk, the petition contained no prayer for reformation of the contract, and the city court of Carroll-ton, in which the case was tried, had no jurisdiction, not being a court of equity, to give affirmative relief by reforming the contract of insurance, even if such a prayer had been made (Hecht v. Snook & Austin Co., 114 Ga. 921, 41 S.E. 74" date_filed="1902-03-12" court="Ga." case_name="Cottingham v. Equitable Building & Loan Ass'n">41 S. E. 74; Ragan v. Standard Scale Co., 123 Ga. 14, 50 S.E. 951" date_filed="1905-05-12" court="Ga." case_name="Ragan v. Standard Scale Co.">50 S. E. 951; DeVane v. Fambrough, 133 Ga. 471 (2), 66 S.E. 245" date_filed="1909-11-19" court="Ga." case_name="DeVane v. Fambrough">66 S. E. 245; Wise v. Royal Insurance Co., 32 Ga. App. 719 (3), 124 S.E. 556" date_filed="1924-09-30" court="Ga. Ct. App." case_name="Wise v. Royal Insurance">124 S. E. 556), a verdict in favor of the defendant was demanded as a matter of law.
4. The court erred in submitting to the jury an issue as to whether or not the parties mutually intended that the destroyed building be included in the insurance risk, and in instructing them as to the measure of damages for the loss of such building.
5. The court erred in overruling the defendant’s motion for new trial.
Judgment reversed.