Lackey v. Georgia Home Insurance

| Ga. | Jan 15, 1871

McCay, J.

Without doubt, there is an irreconcilable conflict in the authorities upon this question. Upon one side, are the Supreme Courts of Massachusetts and Pennsylvania: 23 Pick R., 418; 4 Allen Mass. R., 217; 6 Cushing R., 342; 2 Watts and Serg’t R., 506; 37 Maine R., 137. On the other side, the Suprgme-Court of the. United States, and the Supreme Court of New York; 16th Peters’ R., 496; 4 Howard R., 220; 20 Barbour R, 635; 22 N. Y. R., 402; 5 Ohio R., 467. The former Courts hold that the second policy does not void the first, unless the second be a valid one — one-that can be recovered upon — and that, if the second company’s policy can be shown to be void, even in consequence-of the fraudulent representations of the insured, the condition of the first policy is not broken, because there is, in fact,, no second insurance. The other cases hold, that if the second policy is apparently good, good upon its face, if to void it, proof must be introduced, especially if that proof be the-fraud of the insured, then the condition of the first policy is broken.

A good deal may be said in favor of both of these views. Supposing that the object of the condition is merely to provide that the taking of the second policy shall be considered an abandonment of the first, it may not be fair to hold that the insured has given up his grasp upon the first until he has clearly a hold upon the second. Again, it may be said that here is a condition imposed by the company, on its own policy, over its own signature, and it is to be construed most strongly against it; and, as it is literally true that there is no second policy, the words of the condition are not broken.

In favor of the view taken in New York, and by the Supreme Court of the United States, it may be said that it is a violation of all principle to permit one to set up his own fraud; that it is beneath the dignity of a Court of'justice to sit by and aid one to impose an obligation upon another, by showing that he, the plaintiff, has been guilty of a falsehood. We do not think it necessary to undertake to show, upon principle, which of these eminent tribunals is right. The decisions in all these cases turned upon the contract, upon its terms, and upon its meaning. The question here turns, not so much upon the contract as upon our statute. Our Code, section 2770, enacts as follows: “A second insurance, unless by consent of the insurer, voids his policy.” Any contract made here, is made under this statute, no matter where the company resides. And this law would make void the first policy, though nothing was said in it about a second policy. The case in Georgia, therefore, turns rather on the law than on the contract.

The law is founded in public policy; it is intended to protect, not only insurance companies, but the public against the evils of double insurance. It is found that to permit double insurances, is to afford a temptation to self-incendiaries, who are a danger in the community. The man who, to get the benefit of an insurance, sets fire to his own property, endangers the property of his neighbor. The object of the law is to prevent double insurance; to stop, if possible, the existence of property-holders, with over-insurance upon their property.

Now, it is just as entirely within this public policy to have a second insurance, which one thinlcs is good as to have one which is really good. The danger of a burning is the same in both cases — nay, the very fact that one has fraudulently procured an over-insurance is, prima facie, a suspicious circumstance. The public evil, which the law intended to prevent, is just the same, perhaps greater, if the second insurance be a fraudulent on'e.

Technically, it may be true that there is no second insurance; but to give this construction to the statute, would, as it seems to us, be indeed sticking in the bark. Such is not the usual mode of construing even criminal statutes. Our law against bigamy provides a punishment for one who marries having at the time another wife living. But, says this mode of reasoning, the second marriage is void, one cannot marry with a wife living. So, too, we make it penal to alter a promissory note; yet, in fact, the alteration is void, and if detected can hurt no one.

Laws are not to be so construed. We must look to the manifest intent of the law, and take care not to give it such a construction as will make the intent fail. The manifest intent in this law is to prevent the existence of persons in the community who have an inducement to set their houses on fire. To say that this law does not apply to the case of a man, who, in fact, has this inducement, but who, if his fraud is discovered, cannot get the benefit of it, is, as it seems to us, making the law of very little effect. We can easily see how this insurer might get the benefit of both policies. His failure turns only on his being found out. Perhaps, even now, this second company does not know of the existence of the first policy, and if the plaintiff recovers from the Home, he may yet sue the other. In a suit against them he would not be bound by anything he now sets up. Perhaps be can, notwithstanding his present plea, show that he did give the second company notice. Are they parties here? Do they know all he now admits.?

We are clear that the taking out the second policy without the consent of the first company “voids the policy,” and that the other fact, to-wit: that this second policy, as appears from the proof, is capable of being resisted and treated as null by the company that issued it, in consequence of the misrepresentations of the insured, does not help the case.

Judgment affirmed.