60 Ga. App. 764 | Ga. Ct. App. | 1939
Lead Opinion
E. L. Riley brought suit against Federal Insurance Company on a policy which insured an automobile purchased by Riley against damage sustained by said automobile by collision or upset. Riley was named as the assured, and the policy provided that Ross, if any, payable as interest may appear, to assured and American Discount Company.” Under the evidence submitted, it was shown that Riley purchased the car new in May, 1937, at the price of $1342, and, after making a cash payment, gave his retention-of-title notes for the balance due thereon, and American Discount Company became the purchaser of such notes. On August 11, 1937, the car sustained damages An a collision in an amount alleged to be $1150. It appeared from the evidence that at that time Riley owed American Discount Company on the purchase-money notes the sum of $1026. The evidence for the plaintiff was sufficient to authorize the jury to find that immediately before the injury the car was worth at least $1000, and after the injury only $150. The defendant pleaded and proved that at some time after the damage American Discount Company repossessed the car and accepted from Federal Insurance Company $410 as the amount of the damages sustained by the car in the collision. The court charged the jury as follows: “If' you find that Riley, the plaintiff, was indebted, under the conditional-sales contract, as the defendant claims, to the American Discount Company in the sum of $1026, and if you further believe that the damage caused by the collision was less than the sum owed on the car by the plaintiff, Rilej, to American Discount Company, then you would not be authorized to find for this plaintiff any amount, . . but if you do not believe that the damage to the car, the total damage, exceeded the sum of $1026, provided that you find that Riley, the plaintiff, owed the American Discount Company $1026, if the total damage did not exceed this sum, then the plaintiff could not recover
Irrespective of the rule in other jurisdictions, it is settled in this State by the decision in Johnson v. General Exchange Ins. Cor., 49 Ga. App. 780 (176 S. E. 840), that an action might be maintained on the present policy either by Eiley or American Discount Company. In Trust Co. of Ga. v. Scottish Union &c. Ins. Co., 119 Ga. 672 (46 S. E. 855), it has been held that “A mortgagee may maintain an action at law, in his own name alone, for loss under an insurance policy .payable to him as his interest may appear, when the amount of his debt exceeds or equals the value of the msur anee [not the damage], and the mortgage embraces all of the insured property which was destroyed.” (Italics ours.) It can readily be seen, if the entire amount to be paid under the policy is to be paid to the mortgagee, that the right of action is in him, although the mortgagor may be interested as to the amount and extent of the loss. It becomes another matter, however, when there is a dispute as to the amount which is to be recovered because of the damage insured against, or the amount due and owing by the mortgagor to the mortgagee. It will be noted in the Johnson case, supra,' that the mortgagor brought the action and alleged the amount of the entire loss covered by the policy, and then alleged the amounts which were due to the mortgagees named in the policy, and sued for this amount for their use, and for the overplus, if any, for himself as mortgagor. It does not necessarily appear that the mortgagees named in such action were bound by the allegations and proof offered by the plaintiff in that suit. The opinion stated that “whether either' of these parties should have been made party' defendant is not now presented for decision.”
We can readily see why the charge complained of in the present case was error prejudicial to the plaintiff. It limited his right to recover to the excess of the damage over the amount owed, without anywhere taking into consideration the amount actually paid by the insurer to the mortgagee. In 26 C. J. 485, § 681, it is said: “If the mortgagee’s interest equals or exceeds the amount recoverable under the policy, the entire right of recovery being in him, he may sue alone, provided he makes the mortgagor a party defend
For discussion upon the principles involved, see Capital City Ins. Co. v. Jones, 128 Ala. 361 (30 So. 674, Am. St. R. 152); Peck v. Girard Fire &c. Ins. Co., 16 Utah, 121 (51 Pac. 255, 67 Am. St. R. 600); Brookings v. American Ins. Co., 134 Kan. 616 (7 Pac. 2d 111); Florea v. Iowa State Ins. Co., 225 Mo. App. 49 (32 S. W. 2d, 111); Ohio Farmers Ins. Co. v. Hall, 45 Ohio App. 166 (186 N. E. 823); Commercial Union Fire Ins. Co. v. Wade, 103 Ind. App. 461 (8 N E. 2d, 1009); Gosnell v. Camden Fire Ins. Asso. (Mo. App.), 109 S. W. 2d, 59; Jefferis v. London Assurance Corporation, 16 Fed. Supp. 590; U. S. Fire Ins. Co. v. Hecht, 231 Ala. 256 (164 So. 65); Insurance Underwriters Agency v. Pride, 173 Ark. 1016 (294 S. W. 19); National Union Fire Ins. Co. v. Henry, 181 Ark. 637 (27 S. W. 2d, 786); Great American Ins. Co. v. Peters, 106 Fla. 40 (141 So. 745).
The charge here complained of in effect allowed the mortgagee to agree with the insurer as to the amount of the loss or damage insured against, and precluded the mortgagor from getting the benefit on his indebtedness to the mortgagee of the actual loss or damage, and allowed the insurer to escape liability for, the difference between the actual loss insured against and the amount it paid the mortgagee. It is unnecessary for this court to pass upon the remaining assignments of error.
Judgment reversed.
Dissenting Opinion
dissenting. In my opinion, under the decision of this court in Johnson v. General Exchange Insurance Corporation, 49 Ga. App. 780 (176 S. E. 840), the verdict in favor of the plaintiff for the sum of $50 was demanded by the evidence; and the grounds of the motion for new trial are without substantial merit. The court did not err in refusing to grant a new trial.