160 Ga. 755 | Ga. | 1925
Lead Opinion
Questions involving most of the material facts in this case have been previously submitted to this court and answered in a decision in the case of Pike v. Insurance Co., 158 Ga. 686 (124 S. E. 161). The enumeration of facts' in the questions dealt with, in that case will show the similarity of the questions. The opinion there rendered differentiates the case from that of Scottish Union &c. Ins. Co. v. Colvard, 135 Ga. 188 (68 S. E. 1097). With the statement of additional facts, which will appear from a comparison of the questions submitted in the case in 158 Ga., just referred to, with the questions in the instant case, the court submits additional questions; and those questions are, (a) Did P., after the several transactions stated in the question, retain an insurable interest in the building so insured; and (b) did he retain any interest as assured in the policy, the same not having expired; and (c) in other words, under all the facts stated above, and the absence of any others, did P. continue to have an insurable interest in the property; and if so, did he also have insurance thereon ? In the former decision in this case it was held: “It follows, that, under the former rulings of this court, if an owner of land on which there is a building obtains a loan and executes his notes for the amount and a deed to the property as security for the debt, and procures a contract of insurance in his own favor insuring the building against loss by fire, and causes the insurer to attach to the policy a New York mortgage clause in substance as stated in the question propounded by the Court of Appeals, and if after being so insured the building is destroyed and a loss ensues for which the insurer is liable to the person as whose property the building was insured, and in such circumstances the insurer pays the amount of the loss to the lender, asserting and claiming at the time of such payment that there is no liability to the person as whose property the building was insured, such payment will operate in favor of the borrower as a pro tanto discharge of the debt as against the lender, and the. in
In the case of Hanover Fire Ins. Co. v. Bohn, 48 Neb. 743, 750 (67 N. W. 774, 58 Am. St. R. 719), the Supreme Court of Nebraska said: “This contention [the contention of the insurer] involves the assumption that the Bohns at the date of the issuance of the policy in suit had no insurable interest in the insured property. Is this contention correct? What is an insurable interest? In German Ins. Co. of Freeport, Ill. v. Hyman, 34 Neb. 704 [52 N. W. 401], Post, J., speaking to this question, said: ‘An interest, to be insurable, does not depend necessarily
' We are of the opinion that it follows from what was ruled in the case of Pike v. Insurance Co., supra, and what we have ruled above as to the insurable interest of P. in the property after he sold the same to II. S., that the payment by the insurer to S. operated as an extinguishment' of the note and coupons as to P., and 'that the payment by the insurer to S. was a payment upon the policy as to P., and thát P. was entitled to assert the same as a payment and'discharge of the' notes and coupons when sued thereon.
Rehearing
ON REHEARING.
dissenting. Though I am the writer of the opinion which has been handed down in this case, I have reached' the conclusion, upon further consideration, that certain of the questions propounded by the Court of Appeals should have received a different answer from that given in the opinion as it stands. I do not dissent from the holding that- the insured, designated as P. in the- question, under the circumstances set forth continued to have an insurable interest in the property. It is true that several of the cases cited to support that part of the opinion differed from the present case in many respects, and that the doctrines which they lay down were-to a certain extent obiter; but I thought, upon examining the eases, and still think, that the doctrines laid down were sound, as touching the question of P/s insurable interest in the property. But I do not think that he continued to have an interest in the policy of insurance after the transfer of the property and the policy. While he continued to have an insurable interest, that interest was not insured. I do not think, when the property insured was destroyed by lire, that P. could have possibly maintained, at law or in equity, a suit for any part of the insurance money; and that for the reason he had no insurance upon his interest in the property. As the policy finally stood, the assignee K. was the sole owner of the policy, except as to S.,