51 Ga. App. 962 | Ga. Ct. App. | 1935
Lead Opinion
Mrs. Elizabeth S. Pooser brought suit against Norwich Union Fire Insurance Society Limited, to recover an alleged loss by fire of a house belonging to the plaintiff. Demurrers both special and general to the petition as several times amended were sustained, and the action was dismissed. To this judgment the plaintiff excepted. The two main questions presented for decision are, first, whether it appears from the petition as amended that the interest of the plaintiff in the property insured and which was destroyed by fire was at the time of the fire “sole and unconditional ownership,” except as provided in the policy, and, second, whether the plaintiff had sufficiently complied with the requirements of the policy as to the proofs of loss. It appeared from the allegations in the petition that on October 2, 1931, the defendant issued to the plaintiff a fire-insurance policy covering the plaintiff’s house, that the house was destroyed by fire on February 6, 1932, that the premium had been paid, that “immediately after the fire” the plaintiff notified the defendant of the fire “by notifying the agent in person,” that the defendant sent its adjuster, who inspected the premises, that on November 12, 1932, the plaintiff filed with the defendant a sworn proof of loss, which was sent by registered mail, that the plaintiff had demanded payment, and that the defendant had failed to pay. A copy of the policy appears as an exhibit. In the first amendment it was alleged that at the date of the policy Mrs. Pooser was the owner in fee of the property, subject to a first mortgage in favor of Georgia Loan & Trust Company, and remained such owner until after the date of the fire; that about July 18, 1931, Mrs. Pooser executed a deed covering the insured property to Piney Pond Farms, a corporation, delivering the deed to her attorney, Goree, but the delivery “was not an unconditional
The second amendment struck from the copy of the policy attached to the petition an endorsement purporting to transfer the policy to Mrs. E. Shingler. In the third amendment it was alleged that the defects of title referred to in connection with placing the deed with Goree were defects affecting a tract of land other than the one - on which tile burned house was located, the deed covering both tracts; that Goree was instructed to examine the title to both tracts, and to see if upon delivery of the deed to Piney Pond Farms that corporation would be seized of good title, subject to the Georgia Loan & Trust Company mortgage; that on examination Goree found certain defects in the other tract; that upon being informed of this plaintiff instructed Goree to hold the deed until the title to this tract could be cleared by foreclosure; that Goree still lias the deed which was never recorded or delivered; that about March 2, 1932, Goree furnished to the defendant’s adjuster a copy of the unrecorded deed and explained the details of the escrow arrangement.
The policy contained these provisions: “This entire policy shall be void . . if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss. This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void . . if the interest of the insured be other than unconditional and sole ownership. . . If fire occur, the insured shall give immediate notice of any loss thereby in writing to this company, and within 60 days after the fire, unless such time is extended by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property. . . This company shall not be held to have waived any provision or condition of this policy or any forfeiture thereof by any requirement, act, or proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall not become payable until 60 days after the notice, ascertainment, estimate, and satisfactory proof of loss herein required have been received by this company, including an award by appraisers when appraisal has been required. No suit . . for the recovery of any claim shall be sustainable . . until after full compliance by the insured with all the foregoing requirements, nor unless commenced within 12 months next after the fire.” The proof of loss, sworn to by the
Many points are made and stressed by counsel for the defendant. It is argued with great earnestness and ability that the proof of loss alleged that the deed existed from Mrs. Pooser to the corporation, Piney Pond Farms, “conveying the property, delivered, not recorded pending title examination;” that this must be construed as meaning that the deed had been delivered and that it conveyed the property to the grantee; that Goree, the person to whom Mrs. Pooser had delivered it, was an officer of the grantee, and consequently delivery to him was delivered to the corporation; that, being an officer of the company, Goree could not act as an escrow agent; that such an agent must be a third party; that if the person to whom a deed is delivered in escrow is the grantee, then delivery to the agent is a delivery to the grantee; that although the paper is alleged by the plaintiff to have been a voluntary deed of gift, it recites a consideration of “$10 and other valuable considerations,” which takes it out of the rule as to gifts; and that the recited consideration makes it a contract of purchase and sale, the ten dollars being recoverable even if not in fact paid. The proofs of loss are not an integral part of the insurance contract. That was complete within itself when the policy was issued. There is no provision in the policy that if fire occurs and a mistake of fact thereafter appears in the proofs of loss the policy shall be void. The policy is the contract, and is construed as it is made. The policy provided that it should be void if a change of interest, title,
There is no allegation that Goree had been authorized by his corporation to accept the deed for it. The mere fact that he was an “officer and stockholder” did not give him that authority. It is not correct to assume that the mere fact of his being an officer and stockholder precluded him from acting as agent and attorney for Mrs. Pooser. Being an officer of a corporation does not bar a person from acting individually. There is nothing to show that when Goree received this deed he received it in his official capacity on behalf of the corporation. The case before us is exactly as though that deed had never existed. It was lodged with Goree for delivery on condition to be performed. The condition was never performed. Being a voluntary deed of . gift, and it not being shown that it was ever accepted, it remained under Mrs. Pooser’s control and was withdrawable by her at any moment. It may be true that when a grantor and a grantee consummate a contract of purchase and sale and the grantor lodges the deed with a third party, to be
A gift is not complete until acceptance by the donee. Until then it is withdrawable by the donor. Code of 1933, § 48-101 (Code of 1910, § 4144); Culpepper v. Culpepper, 18 Ga. App. 182 (89 S. E. 161); Helmer v. Helmer, 159 Ga. 376 (125 S. E. 849); Burt v. Andrews, 112 Ga. 465 (37 S. E. 726); Smith v. David, 168 Ga. 511 (3-a) (148 S. E. 265); Hurley v. National Ben Franklin Fire Insurance Co., 46 Ga. App. 515, 518 (167 S. E. 917).
It is true the policy provides that it shall be void “in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after loss.” But it would indeed be a harsh and unjust ruling to hold that misstatements of fact, or legal conclusions resulting from facts, which, as they appeared, were against the insured’s interest instead of being in her interest, would come within the scope of the words “fraud or false swearing” quoted above. Especially would this be true in a case (as this one is) where no possible injury could accrue to the insurer from the misstatement. The
There'is no provision in the policy that it is to be void if the proofs of loss are not made at any certain time after the fire. See Great American Co-op. Fire Asso. v. Jenkins, 11 Ga. App. 784 (a) (76 S. E. 159). The policy provides that the estimate of cost to replace, less depreciation, shall be made by the insured and the company, or by appraisers if they differ, and, the amount of damage having been thus determined, that the sum for which the company is liable shall be payable 60 days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received by the company in accordance with the terms of the policy. The contract further provides that it shall be void if the insured has concealed or misrepresented any material fact concerning the insurance, "or in.case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after loss.” It provides
The original petition set out as a part of an exhibit an endorsement or rider, apparently attached to the policy, containing this statement: “This policy is hereby endorsed for the purpose of transferring same to Mrs. E. Shingler, as owner of the property insured. Attached to and forming part of policy No. E T 316, of the Norwich Union Eire Insurance Society, of England.----Agent.” By her second amendment the plaintiff struck from her
The following cases relied on by the defendant are distinguishable on their face from the facts in the case as here presented in the allegations of the petition as amended. In Watts v. Phenix Insurance Co., 134 Ga. 717 (68 S. E. 479), there was a change in the title. In Springfield Fire Ins. Co. v. Chero-Cola Co., 22 Ga. App. 503 (96 S. E. 332), there was a bill of sale passing title. In Columbia Fire Ins. Co. v. Tatum, 46 Ga. App. 475, 476 (167 S. E. 911), the insured held a bond for title. In Newark Fire Ins. Co. v. Reese, 32 Ga. App. 42, 43 (123 S. E. 41) the court held that compliance with the provision as to furnishing proofs of loss was a condition precedent to recovery, but the “proof” there involved had never been signed nor sworn to. The court remarked that it was nothing more than “a scrap of paper,” and its submission to the company could not be held to be a bona fide attempt to comply with the provisions of the policy. In the case here it does not appear that the company refused to pay because the proof was not filed
In view of what has been said, it is not necessary to discuss those cases cited by defendant which involved waivers of the proofs of loss. In reply to plaintiff’s contention that retention of proofs of loss will waive deficiencies therein, defendant says: “We have freely admitted this all along, but the Georgia decisions (especially the Goldman ease in 30 Ga. App.) show that this-principle does not apply where the proof of loss affirmatively shows there was no liability.” Goldman v. Ætna Insurance Co., 30 Ga. App. 715 (119 S. E. 338), adopts the rule of Alston v. Phenix Ins. Co., 100 Ga. 287 (2) (27 S. E. 981), that "An insurance company, which receives in due time papers submitted to it in good faith as proofs of loss, should within a reasonable time, if the same are unsatisfactory, direct the attention of the party presenting such papers to anjr defects which it claims exist therein; and where a company, without doing this or pointing out the alleged defects, retains the papers so submitted until they are, under a notice to produce, brought into court by it on the trial of an action upon the policy, the company will be held to have waived any objection to the sufficiency of such papers as proper proofs of loss.” The court then adds: “Aliier where the required proof . . is not merely deficient or defective . . but . . affirmatively shows . . that the company is not liable under the terms of the risk assumed.” The ruling last quoted has no application here, in view of the fact that the proofs as filed were ambiguous to the company, and were referred to Mr. Bennet, who sought information from Mr. Goree and got it fully and completely. The proofs now before us can not be held to show that the company was not liable. The statement made in them as to the Piney Pond Farms deed was not clear. Plaintiff had the right to show what the true facts were, and did show them. The company did what the Supreme Court in the Alston case, supra, said should be done in such a situation. It directed "the attention of the party” to the "defects.” And the explanation was at once forthcoming. The facts of Cannon v. Phœnix Ins. Co., 110 Ga. 563 (35 S. E. 775, 78 Am. St. R. 124),
The petition with its amendments set out a cause of action, and the court erred in dismissing it on demurrer.
Judgment reversed.
Rehearing
ON REHEARING.
Counsel for the defendant, in a motion for rehearing, assert that this court has overlooked what counsel claim is an authoritative ruling of the Supreme Court of this State, in Sewell v. Holland, 61 Ga. 608, that the consideration expressed in a dee'd can not be inquired into except in a proceeding between the parties themselves. As we understand and construe the ruling in that case, it is not authority for the proposition thus laid down by counsel. That decision held that where a tenant in common had conveyed his interest in the property to another person, the remaining co-' tenant could not resist a partition of the land at the instance of the vendee in the deed, on the ground that the deed was in part a corrupt agreement between the vendor and the vendee to compound a felony. In American Insurance Co. v. Bagley, 6 Ga. App. 736 (65 S. E. 787), which was a suit to recover for a loss under a fire-insurance policy, in which it was claimed that the insured was not the sole owner of the property because he held under a deed of bargain and sale from the wife, which was void as not having been approved by the superior court, it was held, notwithstanding the deed recited a money consideration, that it could be shown that the deed was a deed of gift from the wife to the husband, and was therefore valid because such a deed did not require the approval of the superior court. In that case the wife was not a party. Anderson v. Continental Insurance Co., 112 Ga. 532 (37 S. E. 766), in which it was held that it was not competent to show by parol that an absolute deed passing title, in the absence of fraud, was merely a power of attorney and was executed for a purpose other than passing title, and that the consideration upon which it was executed was different from that expressed, is not authority against the proposition that, notwithstanding the recital of a money consideration in a deed, it may be shown to be a voluntary deed
It is also insisted by counsel for the defendant that the decision of this court in the case at bar is in conflict with the ruling in Cannon v. Phœnix Insurance Co., 110 Ga. 563 (35 S. E. 775, 78 Am. St. R. 124), where it was held as follows: "There was, on the trial of an action against an insurance company, no error in refusing to allow the plaintiff to introduce in evidence a proof of loss which showed on its face that the company was not liable, nor in refusing to allow the plaintiff to prove by parol testimony facts a recital of which in the proof of loss at the time of its presentation to the company would have made the proof legally sufficient to support a claim of loss.” This court, in the opinion as originally written, attempted to distinguish that case. In that case the proof of loss showed damage only from smoke and soot escaping from a defective stovepipe which, as the court held, was not covered by the insurance " against all direct loss or damage by fire,” as provided in the policy. It was there held that the proof of loss showed on its face that the company was not liable. It was also held that parol proof tending to show that some of the woodwork in the building had been actually destroyed by fire, the loss of which might have been recovered under the terms of the policy, was properly excluded from evidence. , In that case the plaintiff’s proof of loss failed to show any damage recoverable under the policy, and the offered evidence tended to show a damage, which, although recoverable under the policy, was not recited or claimed in the proof of loss. That case is clearly distinguishable from the one now before this court. In the present case the plaintiff, in her proof of loss, alleged and claimed a damage arising under the terms of the policy, and by a misstatement of fact showed that the plaintiff was not the sole owner of the property. To permit the plaintiff to show by parol information communicated to the insurance company, at the company’s request, after the filing of proof of loss, the true facts with reference to the deed referred to in the proof of loss as one conveying ownership of the property out of the plaintiff, is an entirely different proposition from permitting an insured to show by parol, on the trial, a damage from loss by fire which was not included or even referred to in the proof of
Counsel for the defendant insist that it appears conclusively from the allegations of the petition that the deed was one in escrow. Whether or not the plaintiff used the word “escrow” in referring to the character of the deed is -immaterial. She is not, as a matter of law, bound by this allegation, where she elsewhere in the petition as amended alleged facts which show the true character of the instrument and that it was not a deed in escrow. In McClure Ten-Cent Co. v. Humphries, 29 Ga. App. 524 (116 S. E. 54), it was held that “where general allegations setting up agency are followed by specific detailed averments, the former ordinarily will yield to the latter.” See cases there cited; 49 C. J. 121.
We have, upon rehearing, added headnotes 2, 3, and 4. With these additional headnotes and this addition to the opinion, we adhere to the original opinion and the headnotes there attached, and to the original judgment reversing the judgment sustaining the demurrer to the petition as amended.