57 Ga. App. 699 | Ga. Ct. App. | 1938
Lead Opinion
The South Georgia Railway Company, a corporation with headquarters in Quitman, Georgia, brought suit in the superior court of Brooks County against Manufacturing Lumbermen’s Underwriters, a nonresident corporation with headquarters in Kansas City, Missouri, on a policy of fire insurance, for a loss by fire of a building insured under said policy. When the case came on for trial, on the 10th day of May, 1937, and before the trial proceeded, the attorneys who had theretofore appeared generally for the Manufacturing Lumbermen’s Underwriters appeared specially as amici curiae and filed a written “suggestion” to the court, that the existence of Manufacturing Lumbermen’s Underwriters, the sole defendant in said case, had been terminated both in fact and at law by a decree and judgment in the circuit court of Jackson County, Missouri, on the 1st day of April, 1937, and that the superior court of Brooks County was without power to enter any valid judgment against said nonexistent defendant. The court overruled the “suggestion” and ordered the case to proceed to trial. “The attorneys of record appearing as amici curiee” excepted pendente lite, and now assign error upon the pendente lite exceptions. Upon the trial of the ease, the judge directed a verdict in favor of thé plaintiff for the full amount of principal sued for, interest, and costs. The defendant filed a motion for a new trial which was overruled, and on this judgment the defendant assigns error.
R. E. O’Malley, superintendent of the insurance department of the State of Missouri, filed a motion in this court in
The paper denominated '“suggestion,” in which certain statutes of Missouri were quoted, and in which it was alleged that the Manufacturing Lumbermen’s Underwriters had been declared insolvent by a judgment of a court in Missouri, that B. E. O’Malley, superintendent of the insurance department of the State of Missouri, was vested with the assets of said corporation, that the corporation had ceased to exist, and that the trial court was “without power to enter any valid judgment” against the defendant, was not filed in behalf of the defendant, but was filed by attorneys as amici curiae, and the same attorneys “had theretofore appeared generally for the defendant Manufacturing Lumbermen’s Underwriters,” and, after the “suggestion” was overruled, they appeared as attorneys for the defendant in the trial of the case, and they appear as attorneys for the defendant (now plaintiff in error) in this court. It thus appears that the defendant, though alleged to be dead, after its demise actively contested and still contests the claim of the plaintiff. In an exhibit attached to the suggestion certain statutes of the State of Missouri pertaining to the dissolution of insurance companies were cited. The exhibit also set forth a judgment and decree of the circuit court of Jackson County, Missouri, dissolving the Manufacturing Lumbermen’s Underwriters. Conceding, but not deciding, that the dissolution of the company was properly shown by the suggestion and its ex-
In Kelsey v. Cogswell, 112 Fed. 599, it is held: “Code Ga. 1895, §§ 2035-2043, require fire-insurance companies doing business in the State to make a deposit with the State treasurer to secure the people against loss by the operation of said companies. They provide the method by which the liability of a company for 'any loss insured against5 may be enforced against such deposit; and section 2041 provides that any claims of citizens of the State 'for losses, or on existing policies where no losses have occurred/ must be settled before the deposit can be withdrawn. Held, that the primary purpose of the deposit, under such provisions, is to secure the payment of fire losses, which are the only losses 'insured against/ although it also secures, secondarily, other claims arising on policies, such as the repayment, after the termination of the risk, of unearned premiums paid; that even when a company becomes insolvent, and the deposit is brought into a court of equity for distribution, fire losses are entitled to priority of payment from the fund over claims for unearned premiums.55 The “statement of the case55 (p. 600), on which the above holding is based, shows that “the Manhattan Fire Insurance Company, a corporation of New York State, transacting business in the State of Georgia and elsewhere, was duly declared to be insolvent by a judgment of the Supreme Court of the State of New York, and under the statutes
An insurance company which complies with the laws of Georgia in order to do business in Georgia, is subject to the laws of the State prescribing the conditions under which it may do business and to the statutory remedies against such corporations. E. E. O’Malley, superintendent of the insurance department of the State of Missouri, did not attempt to be made a party to the pending case in Brooks County, Georgia, and the attorneys for the defendant company did not see fit to file a plea setting forth the dissolution of the defendant as a corporation. Whether they could have sustained such a plea by proof would be purely conjectural as no legal evidence was submitted in support of the “suggestion.” Since the receiver did not intervene in the court below, counsel for the plaintiff in error in this court are in the anomalous position of apparently representing one who is not a party to the case. Who knows that the defendant has ceased to exist as a corporation? There is no proof of .this, since the mere allegations in the so-called. '“suggestion” can not be considered as evidence. However, if the defendant were dissolved, under Code, § 22-1210, above quoted, its dissolution would not operate to extinguish the demand or cause of action against it in this State, and “pending suits may be prosecuted and enforced to a conclusion as though such corporation were still undissolved.” See also Dixie Mfg. Co. v. Ricks, 153 Ga. 364, 370 (112 S. E. 370). The law as embodied in this Code section seems to be the settled policy in this State. The case of Venable v. Southern Granite Co., 135 Ga. 508 (69 S. E.
The substance and effect of the special grounds of the motion for new trial are that the verdict directed was not demanded by the evidence. The policy sued on covered various properties of the South Georgia Railway Company, aggregating $51,425; and schedule No. 1 of the policy contains the following provision: “$23,950 — on buildings: viz.: passenger and freight-station houses, warehouses, storehouses, and their platforms attached thereto, section houses, dwelling houses, and other miscellaneous buildings or structures not coming under the headings of the other schedules and not occupied for manufacturing purposes.” Included in the list of properties under this schedule No. 1, showing the amount of coverage on each building in this schedule, is the following: “Quitman, Ga. Scriven St. Whse. $3000.” This was the building destrojred by fire. The undisputed evidence shows that the loss was in excess of $7000, though the coverage was only $3000. The defendant insurance company contends that it is not liable because the building had been occupied for manufacturing purposes, that the defendant company had no notice that the building was occupied for manufacturing purposes, that the insurance agents who handled the matter at Quitman, Georgia, were not the agents of the defendant company, and that they were the agents of the insured. We are convinced that the clause “and other miscellaneous buildings or structures not coming under the headings of the other schedules and not occupied for manufacturing purposes,” embodied in the provision of the policy above quoted, properly construed, does not refer to the buildings specifically named in this schedule, but refers to “other” miscellaneous structures which are not specifically scheduled, and which may have been overlooked. Since the schedule specifically names certain structures, and concludes by saying “and other miscellaneous structures,” it necessarily means other structures not specifically named. Especially is this true in view of the punctuation in this provision of the policy. This building was not some “other miscellaneous building” not named, but was specifically included in the schedule of buildings actually insured, and was specifically insured by the policy regardless of the purpose for which it was used. Even if
However, since this building was specifically named and insured in the policy, the construction of this provision of the policy is immaterial in the light of the evidence, as hereinafter shown, because it appears therefrom that the company issued the policy with notice of the use of the building. 0. F. Cater testified in part: “In 1935 and 1936 I was auditor and treasurer for the South Georgia Eailway Company. In July, 1935, I took out this policy for the South Georgia Eailway Company. This is an omnibus policy of insurance on all of the buildings up and down the line owned by the South Georgia Eailroad. Before I took out the policy, I prepared a schedule listing the buildings and equipment and the values I wished them insured for, and submitted them to all of the agents in Quitman who wrote insurance. I submitted the schedules to McDonald & Cobb, A. L. Tidwell, W. B. Holwell, and Denmark Groover. That is the paper which I prepared and submitted, and I made four copies of it and submitted one to each of the four agents named. Upon this schedule the description of the building, for which destruction by fire this suit was brought, was described 'Quitman, Ga., Seriven Street, warehouse —$3000.’ This indicates the amount of insurance I desired, and the purpose of furnishing this memorandum to the agents was to obtain as low a rate as possible. I received bids from all of the agents to whom I submitted the schedule as to how much it would cost the railroad to insure these buildings and the personal property designated therein. It was as a result of this preliminary, activity that this policy was written by McDonald & Cobb. I paid the premium in the sum of $316.26 for one year, to McDonald & Cobb, agents. . . The business of preparing feed, mixing food for cows, chickens, and stock foods, was carried on in this building, I think. . . This building has been used for this purpose by the Suwannee Milling Company for three or four years at least before this policy was taken out. . . I would estimate the damage to the market value of the building, taking into consideration
D. B. McDonald, of the insurance agency of McDonald & Cobb, of Quitman, Ga., testified that his agency brokered the business; that “We just copied that schedule, and we sent copies to different companies that we thought would be interested, and told them what rates we thought it would take to get the business, and they accepted it at that rate and prepared the policy in Atlanta. They authorized us to deliver it. When you broker insurance, the policy is sent to the agent handling it and he delivers it. . . The Charles-Parrott Agency in Atlanta finally authorized us to quote to Mr. Cater certain prices. . . This is the policy they sent me. I delivered it to the South Georgia Eailway Company, which paid me by check to McDonald & Cobb. Here is a copy of the letter where I sent it [the schedule of the buildings which the plaintiff wished insured and the amount of insurance desired on each] to Charles-Parrott Agency, and as a result of that this policy was issued by the defendant and delivered to the South Georgia Eailway Company. . . I knew that it [the building burned] had been used for many years for the processing of feed. . . The book you hand me is an insurance rate book. I had it in my possession at the time the policy of insurance was written. It contains a description of the buildings and location and insurance rates as compiled by the Southeastern Underwriters Association. . . On the last page there is a description of the Suwannee Milling Company, 708 E. Seriven St., north side, that was destroyed by fire. . . The map handed me marked ‘Insurance map, Quit-man, Ga.,’ loaned to McDonald & Cobb, Quitman, Ga., by the Southern Map Company, shows on page 4 the location and construction of the Suwannee Milling Company. That is the building that was burned, and I had this in my possession at the time. . . I received a commission from Manufacturing Lumbermen’s
The defendant company proved that part of the building burned was used for manufacturing or processing different kinds of food stuffs, and that part of it “was used as a warehouse for the storing of this mixed stuff.” Neither the brokerage of the insurance by the local agent with an Atlanta agency, nor the use of part of the building for manufacturing or processing food stuffs, both of which are admitted, raises any issue of fact for the jury, because, under the undisputed evidence as applied to the law, the local or resident agent represented the defendant insurance company in this transaction, and he had knowledge, at the time the policy was written, that the building was used for processing food stuffs. His knowledge of this was imputable to the defendant insurance company which he represented. The undisputed evidence shows that McDonald & Cobb procured the application for the insurance; that as a result of their efforts in sending out the list of buildings and the amount of insurance desired, the policy was issued by the defendant company; that they delivered the policy to the insured; and that they received the premium from the insured. “Any person who shall solicit in behalf of any insurance company, or agent of the same, incorporated by the laws of this or any other State or foreign government, or who shall take or transmit, other than for himself, any application for insurance or any policy of insurance to or from such company or agent of the same, . . or who shall receive or deliver a policy of insurance of any such company . . or receive or collect or transmit any premium of insurance, . . or do or perform any other act or thing in the making or consummating of any contract of insurance for or with any such insurance company, . . whether any of such acts shall be done at the instance or request or by the employment of such insurance company, or of, or by, any broker or other person, shall be held to be the agent of the company for
Counsel for plaintiff in error insist that the knowledge of McDonald & Cobb was not imputable to the defendant company because McDonald testified: “We did not Write that policy at all.
The court did not err in overruling the motion for new trial.
Judgment affirmed.
Rehearing
ON MOTION EOR REHEARING.
Counsel for the movant state that they confine the motion “solely to the question of practice and the decision arising on the exceptions pendente lite to the disposition made of
Behearmg denied.