98 Ga. 262 | Ga. | 1896
The Mutual Real Estate and Building Association sued the Mechanics and Traders Insurance Company of New Orleans, alleging that the defendant was indebted to it in the sum of $1,875 upon a certain fire insurance policy. It appeared from the declaration, that the policy was issued by the defendant on October 6, 1891, to' P. J. Skinner, for $2,000, on property described as “his one^story frame shingle-roof dwelling-house,” located at a place named, “in course of construction,” that Skinner was a contractor and was erecting the building upon a lot belonging to the plaintiff, and under a contract with one Bigelow, who, upon the completion of the building, expected to receive from the plaintiff a bond for titles for the property, and to pay for the house by installments according to the method adopted by the plaintiff in providing for the purchase and building of homes for its patrons; that the policy was originally issued to expire December 5, 1891, and was renewed and extended in writing to January 6, 1892; that on December 13, 1891, the house, then almost completed, was totally destroyed by fire from some cause unknown to the plaintiff or to Skinner;
The defendant demurred generally to the declaration as not setting forth a cause of action, and demurred also on special grounds, the main ground insisted upon being that the declaration did not show that the interest of the assured at the time of taking out the insurance was no* other than unconditional and sole ownership of the property, and that the declaration showed on its face that the subject of the insurance was a building on ground not owned by the assured in fee simple. By an amendment to the declaration the plaintiff alleged that at and before the issuing of the policy, and also before it was renewed, the defendant had full notice that Skinner was only a contractor and that he had no interest in the land or in the house in course of construction except that of a contractor and builder; that the policy was issued and also renewed for the purpose of covering a contractor’s or builder’s risk; that the agents of the company, before the issuing of the policy, went them
The defendant insisted upon its demurrer to the declara1 tion, but the court overruled the demurrer, and to this ruling the defendant excepted.
1. Stipulations and conditions in a policy of insurance such as those above stated are binding upon the insured, and call for a disclosure on his part as to the matters to which they refer; and if he accepts the policy without making such disclosure, the -policy will be void. See Richards, Insurance, §136; Lasher v. Ins. Co., 86 N. Y. 423, 426; Waller v. Northern Assurance Co., 10 Fed. Rep. 232; Syndicate Ins. Co. v. Bohn, 65 Fed. Rep. 171, 27 Lawy. Rep. Annot. 608, and cases cited; Diffenbaugh v. Ins. Co., 150 Pa. St. 270; Mers v. Insurance Co., 68 Mo. 127; Collins v. Ins. Co., 44 Minn. 440; Weed v. Ins. Co., 116 N. Y. 106; Waller v. Assurance Co., 64 Iowa, 101; McFetridge v. Ins. Co., 84 Wis. 200; Liberty Ins. Co. v. Boulden, 96 Ala. 508. The declaration as it originally stood was therefore demurrable, it appearing therefrom that the subject of the insurance was a building on ground not owned by the insured in fee simple, and it not appearing, either from the policy itself or from any allegation in the declaration, that this fact was known to the insurance company or that the conditions of the policy touching the ownership of the property had been waived. This, however, was cured by the amendment. It is well settled that where an agent who is author
2. It appeared from the evidence, that the policy was renewed on December 6th by the agents who had originally issued it, and that they did not then collect the premium, but, as had been frequently done by them in other instances, extended credit therefor to the insured and accounted for it to the insurance company, charging themselves with the amount due as if the same had been collected. The fire occurred on the 13th of the same month, and on the 21st the insured paid the premium to the agents, who gave him a receipt for it and transmitted the money to their principal.
3. The plaintiff having by its amendment to the declaration alleged a waiver of the conditions of the policy as to title, etc., it was incumbent upon it to- prove the same. There was no direct proof of the facts alleged as constituting a waiver, but it appears from the evidence that the defendant, in its dealings with the plaintiff after the loss, treated the policy as valid and objected merely to the amount of the plaintiff’s claim. It filed a plea admitting its liability on the policy in an amount stated, and averred that it had tendered this amount to the plaintiff before the action was
4. The only remaining question at issue, under the evidence and the law applicable, being what was the value of the insurable interest of the insured in the property, and there being sufficient evidence to sustain the verdict as to amount, and it appearing that no material error was committed at the trial, and also that there had been a previous finding in favor of the plaintiff, this court cannot say that the court below abused its discretion in refusing to grant a new trial. Judgment affirmed.