49 Ga. App. 780 | Ga. Ct. App. | 1934
Lead Opinion
P. R. Johnson, as an insured under a policy of theft insurance upon an automobile, wherein the plaintiff, as the purchaser of the automobile, Stone Mountain Chevrolet Company as the alleged “dealer,” and General Motors Acceptance Corporation are insured against the theft of the automobile "as their interests may appear,” by his petition as amended, brings suit in his own behalf against General Exchange Insurance Corporation, the insurer, for damages for the theft of the automobile, under the provisions of the policy, in the sum of $461, plus 25% thereof as a penalty for bad faith, amounting to $115.25, and the sum of $250 as attorney’s fees, less $294 which it is alleged was due to General Motors Acceptance Corporation and Stone Mountain Chevrolet Company, for which latter amount of $294 the plaintiff brings suit for the use of General Motors Acceptance Corporation and Stone Mountain Chevrolet Company. It was alleged that the plaintiff complied with all the requirements of the policy, and that proof of loss and demand were made in due time, as required by the policy, and that suit was brought after the expiration of sixty days from demand. The defendant demurred to the petition as amended upon the ground that it failed to set out a cause of action, that it failed to show any right in the plaintiff to recover, and that there was a “non-joinder of parties plaintiff” in that General Motors Acceptance Corporation and the dealer named in the policy were each a coinsured and had an interest in the policy and were not made parties plaintiff. The demurrer was sustained and the case dismissed, and the plaintiff excepted.
The petition alleged a liability on the policy by the defendant for a loss to some one. This is not denied by the defendant. Has the plaintiff, P. R. Johnson, the right to maintain the suit to recover under the policy, in the absence of General Motors Acceptance Corporation and Stone Mountain Chevrolet Company as parties plaintiff? P. R. Johnson is named in the policy as the purchaser of the automobile, and Stone Mountain Chevrolet Company is named in the policy as the “dealer.” The policy provides that it “does in
The contract expressly insures the three parties named “as their interests may appear.” They are not insured jointly, but severally, and to the extent of their several interests. The interest of each party insured is separate and distinct, and may be in different amounts accordingly as “their interests may appear.” ■ The defendant insurance company is a party to this contract and is, of course, bound by its terms. It could, after a loss, discharge its obligation under the contract by a settlement separately with each of the parties insured to the extent of each party’s interest. The defendant could, out of the sum due as loss under the policy, pay to General Motors Acceptance Corporation, or to Stone Mountain Chevrolet Company, as the case may be, the balance due by the purchaser upon the purchase-money of the automobile, and could also pay to the purchaser the balance, if any, which would be due to him.
No case in Georgia exactly in point has been cited. In fact no case exactly in point has been cited by counsel for either party. The court, by its own investigation, has found that it has been held in several cases by the Supreme Court of New York that under a policy of fire-insurance issued to more than one party as the insured, as where it is issued to a mortgagor and mortgagee “as interests may appear,” or “as their respective interests may appear,” the liability of the insurer is several and not joint, and that either one of the insured, or his assignee, may, without joining the other party insured, maintain an action on the policy. See Kent v. Ætna Ins. Co., 84 App. Div. 428 (82 N. Y. Supp. 817), and Strombald v. Hanover Fire Ins. Co., 121 Misc. 322 (9) (201 N. Y. Supp. 67). In the former case, where the policy was issued to the mort
The plaintiff, P. B. Johnson, may maintain an action on the
Can the plaintiff, P. R. Johnson, recover the amount due the General Motors Acceptance Corporation, or the Stone Mountain Chevrolet Company, which represents the balance on the purchase-money of the automobile? This question is not presented by the general demurrer, and it is not raised by a special demurrer. The plaintiff, under the contract, may recover to the extent of his interest in the sum payable as loss under the policy. The petition is therefore good as against the general demurrer, and the special demurrer interposed on the ground that the petition was defective because of a non-joinder of parties plaintiff.
It is suggested, by way of obiter,, that where the purchaser of property is under an obligation to pay the unpaid portion of the purchase-price, notwithstanding the loss of the property by a hazard insured against, he has an insurable interest in the property to the extent of its full value, and may recover the full amount of the loss payable under the policy. Ryan v. Agricultural Insurance Co., 188 Mass. 11 (73 N. E. 849); Vigliotti v. Home Ins. Co., 206 App. Div. 398 (201 N. Y. Supp. 407). See Civil Code (1910), § 4123. In Lincoln Eire Ins. Co. v.- Hurst, supra, the Supreme Court of Florida held that a plaintiff in the situation of the present plaintiff may recover on the policy the full amount of the loss, including the amount due the other party to the contract, which is recoverable for the latter’s use.
The petition set out a cause of action and was not subject to demurrer. See Douglas &c. Co. v. Swindle, 2 Ga. App. 550 (1). The court therefore erred in sustaining the demurrer.
Judgment reversed.
Concurrence Opinion
concurring specially. I agree to the judgment rendered in this case, but do not concur in all that is said by my