110 Ga. 618 | Ga. | 1900
The Greenwich Insurance Company of New York brought suit in Floyd superior court for the purpose of recovering back money paid on an insurance policy issued by the plaintiff to the defendant in consequence of the destruction by fire of the property insured. The ground for the action was, that the insured in his application for a policy had warranted that the entire title, not only to the property insured, but also to the land upon which the same was located, was absolute and in fee simple in the applicant, and that the applicant was the sole and undisputed owner of the whole of said property proposed for insurance, including the land on which it stood. Proof of loss was made out by the applicant, in which it was reaffirmed that the representations made in his application were true. Upon the faith of these representations, the company sent an adjuster to Rome, Ga., where the property was located, and they finally settled the loss by the company paying the insured the sum of $534.50. Since said payment, the petition alleges, plaintiff ascertained that the representations of the insured as to the ownership of the land and buildings were false, and that ,the title thereto was not in defendant, but that it claimed title under a certain deed from Simpson to said defendant; and .petitioner had an accurate survey of the property made in accordance with the description in said deed. This survey discloses the fact that the gin-house property, that was insured, was noUembraced within the same. Plaintiff thereupon made demand upon defendant for the refunding and repayment to it of said sum, which defendant refused to entertain, and declined
It appears from the record that there was introduced on the trial the policy of insurance, and the application therefor, and that the insurance extended from September 22, 1894, to March 22, 1895, to the amount of $1,000.00 upon the following property set forth and itemized in the policy as follows:
Sum Insured. Yaluation.
“ On steam power 1 & 2-story gin-house, built of frame and covered with shingles........ $ 150. $ 500.
On one gin-stand of saws, each 75. 150.
On one condensers, each...... 35. 60.
On beaters and cleaners, each.. ...... ......
On one feeders and breakers, each ...................... 35. 60.
On engine and boilers....... 250. 600.
Oñ press and fixtures belonging thereto, 55 .'............... ...... ......
On fan elevator and appurtenances .................... 55. 100.
On flues, leveler and distributor ...... ......
On belting................. ...... ......
On running-gear and appurtenances .................... ...... ......
On assured’s cotton, ginned and unginned, packed and unpacked in said gin-house............ 250. 400.
On cotton held in trust or on commission, for which assured may be liable therein........ ...... ......
On cottonseed therein....... 150. 250.
On grist-mill .............. ...... ......
Total $1,000. $2,120. ”
To this petition the defendant answered, denying it had made any specific warranty; admitting the amount paid, but denying that it was the agreed amount of damages to the insured property. defendant averred that the insured property was totally destroyed, and defendant’s loss by the fii’e was $2,000.00; and that the amount paid was much less than the amount for which the property was insured, and it was accepted because the plaintiff would not pay the full loss, or what'was justly due on the policy, without suit, and defendant took this sum to avoid a suit at law. The answer further denied the allegation that the title to the property insured, as well as the land upon which the same was located, was not absolutely in it, and averred that the charge contained in the petition with reference to this title was not the truth.
It appeared from the evidence that the deed under which ' the Rome Grocery Company claimed title to the property in. question conveys lot 135, and 60 acres off the south side of lot 154 in the 22d district and 3d section of Floyd county. It also conveys the crops and personal property on said land; also one 8-horse power engine, one sixty-saw gin, feeder and condenser attached, also one cotton-press, all in the gin-house on said place,, and the crop, lands, etc., described in the deed, warranted free from incumbrance. It further appears that plaintiff procured a surveyor to survey the land in question, and under his testimony, which identified the plat he had made of the land, it appeared that in the lot 135, and in the 60 acres cut off of the south side of lot 154, the gin-house was not included; that a part of the line, which included the line described in the deed, did take in a portion of the personalty, for instance, the engine, or a portion thereof, which was off a few yards from the house. The house, however, was in a few feet outside of the lines run by the surveyor. The evidence seems undisputed that all this property which had been insured had been fully paid for by the defendant, and that the personalty, which embraced by far the largest amount of insurance, was entirely unencumbered. After
There are authorities recognizing the right of an insurance company to recover back money, under certain circumstances, paid the insured in the settlement' of a claim of loss on his policy, but, so far as our investigation has extended, in all these cases it appeared that the company acted, in adjusting the loss, upon some misrepresentation made by the insured, of a nature tending to show that he knew of its falsehood or. incorrectness at the time he made such misrepresentations, and received the money with knowledge of the actual fraud which he had perpetrated. Those cases, of course, have no application to the controlling question involved in the present case. In this case there was no such pretence of any fraudulent conduct on the part of the plaintiff in error either before or at the time of receiving
We therefore think that the court erred in directing a verdict for the plaintiff, but that the issues should have been submitted to the jury under instructions from the court given in accordance with the principles of law herein announced.
Judgment reversed.