50 Ga. App. 732 | Ga. Ct. App. | 1934
Ida and S. W. McRoberts sued Sentinel Fire Insurance Company for $750, the face amount of a fire-insurance policy on a dwelling, and for interest, a penalty, and attorney’s fees. The jury returned a verdict in favor of the plaintiffs for $750 principal, $48.07 interest, $187.50 penalty, and $100 attorney’s fees. The insurance company excepted on general and special grounds to the denial of its motion for new trial. It contends that the
No witness testified for the company in denial of the alleged statements made by the adjuster. Only certain correspondence was introduced. On December 10, 1932, the plaintiffs’ attorneys wrote to the company the following letter:
“We hold fire insurance policy No. 1207, issued by your company in favor of Ida and S. W. McRoberts, insuring a dwelling house at Graham, Appling County, Georgia, for $750. This dwelling was totally destroyed by fire on the 29th day of July last. Soon after the house was burned, the adjuster representing your company made investigation of the loss, estimated the value, etc,, of the building, and states that his investigation showed that it was an honest fire, and payment would be promptly made; that the insurance was not excessive. The insured have patiently waited for settlement and the matter is still delayed with no definite assurance as to when payment will be made. The law fixes the time [in] which settlement must be made in cases like this at issue. This time has already elapsed, and this is to notify you that unless payment is promptly made to us for the amount of this policy, we will file suit immediately upon this policy now in our possession, and will also include penalty and attorney’s fees as fixed by law. We hope this will not be necessary, and that you will promptly make settlement; otherwise, suit will be filed in a few days,” etc.
On December 22, 1932, the adjuster wrote to the plaintiffs’ attorneys the following letter:
“The company has.sent us copy of your letter of December 10th
“We draw your attention to the terms of the policy, which have not been complied with, inasmuch as no proof of loss has been submitted to the insurance company and there has been no waiver of such an instrument by the company or by any of its representatives. Without admitting or denying liability, nor waiving, nor intending to waive, any of the company’s rights, all of which rights are specifically reserved, we remain,” etc.
There was no evidence as to any bad faith of the company in refusing or failing to pay the claim after demand, other than as might be inferred from its actions through the statements and letter of the adjuster. The suit was filed on May 8, 1933. The jury returned a verdict in favor of the plaintiffs for $750 principal, the face amount of the policy, $48.07 interest, $187.50 penalty, and $100 attorney’s fees. A new trial was denied. The general and special grounds of the motion are sufficiently stated in this opinion.
A decision was originally rendered in this case, affirming the judgment below on condition that the recovery for penalty and attorney’s fees be written off. On motion for rehearing the insurance company urged that, since there was no evidence of any express waiver of the proof of loss required by the policy, the testimony for the plaintiffs that the adjuster of the company, a few days after the fire, stated to an agent of the plaintiffs that “there would be no delay in the settlement,” that “all he wanted to do was to get the insured to sign the proper papers and settlement would be promptly made,” and that “the transaction was complete except getting the insured’s signature,” could operate against the company only if the statements and conduct of the adjuster and the company constituted an estoppel in pais; that such an estoppel would not
Under the testimony for the plaintiffs, the jury were authorized to find that the insurance company, by its adjuster, in effect admitted and recognized its liability for the claim of the plaintiffs to their authorized agent, and agreed to pay the amount of the policy merely upon their signing a receipt or such final settlement paper as the company would prepare and present to them merely for their “signature,” without requiring the furnishing of sworn proof of loss.
It is true that, in the absence of an express stipulation in the policy that the furnishing of proofs of loss shall be a condition precedent to a recovery, the failure by the insured to furnish the proofs of loss within the time specified for such proofs will not operate as a bar to an action on the policy, “if the insured furnished the required proofs of loss in time for at least sixty days to elapse between the date upon which they were furnished and the expiration of the twelve months limitation.” Southern Fire Insurance Co. v. Knight, 111 Ga. 622 (36 S. E. 821, 42 L. R. A. 70, 78 Am. St.
It is quite true that the dividing line between waivers implied from words and conduct and estoppels arising from conduct, particularly in insurance cases, is often so shadowy that our own courts as well as those of other jurisdictions have frequently used the terms interchangeably, and that in particular instances conduct or even words alone may constitute both an implied waiver and an estoppel. This confusion of terms is doubtless the basis of certain decisions and of the obiter expressed in the opinion of the United States Supreme Court in Globe Mutual Life Ins. Co. v. Wolff, 5 Otto, 326 (24 L. ed. 387, 390) : “The doctrine of waiver, as asserted against insurance companies to avoid the strict enforcement
Under the above-quoted tests, the testimony as to the original declarations of the adjuster fully authorized a finding that they constituted an implied but absolute waiver of proof of loss, and not merely an estoppel. This is true because the statements of the adjuster, as testified, were voluntary and intentional, and his acts and conduct were not involuntary, unintentional, and dependent for their efficacy on what they caused the insured to do. Under the Civil Code (1910), § 2490 (Code of 1933, § 56-831),
The instruction of the trial court in that case submitted merely the question as to whether the terms of the policy were “waived” by the act of the adjuster in writing to the insured to make up an estimate of his loss, without submitting any question of estoppel because of detriment to the insured. In Corporation &c. Assurance v. Franklin, 158 Ga. 644 (1-3), 652 (124 S. E. 172), the distinction between waivers and estoppels in insurance cases was also recognized. In Southern Mutual Insurance Co. v. Turnley, 100 Ga. 296 (8), 300 (27 S. E. 975), the act of an insurance company in entering with the assured into an arbitration to ascertain the amount of loss was treated as a waiver of proofs of loss. There are many physical precedents in cases where the acts and conduct of insurers in connection with policy requirements as to proof of loss were referred to or treated as a waiver of such proof, although the question as to an estoppel was not discussed, and in some of the decisions the silence or other conduct of the insurer seems to have amounted more to an estoppel than to a waiver, or to both an estoppel and waiver. See Alston v. Phenix Insurance Co., 100 Ga. 287 (2) (27 S. E. 981); Great American Co-Operative Fire Association v. Jenkins, 11 Ga. App. 784 (2), 786 (76 S. E. 159); Goldman v. Ætna Ins. Co., 30 Ga. App. 715 (119 S. E. 338); Ætna Ins. Co. v. Mosely, 47 Ga. App. 25 (2), 30-33 (169 S. E. 695); Life Insurance Co. of Va. v. Williams, 48 Ga. App. 10 (2),
Where estoppel exists, a consideration for the loss of some right or remedy claimed to lie estopped is not required, for that element is either supplied or rendered unnecessary by the loss or detriment which would have been suffered, but for the estoppel, by the party
An important legal element of a waiver, either express or implied, is that the party voluntarily making it must have knowledge of the facts, and that it be given or procured without fraud by the other party. Where this is true, the party making the waiver can not afterwards take back the right which was thus surrendered. When some incidental right has once been waived and relinquished, and thus eliminated as an incidental element of the contract, it can not he reclaimed. This is true even though the relinquishment be made “in the absence of any consideration therefor or of any change of position by'the party in whose favor the waiver operates.” 67 C. J. 313, 314, and cit. See also Board of Education v. Day,
It follows, therefore, that if, as we think is true, the original statements of the adjuster, which the jury were authorized to find recognized the liability of the insurance company for the-loss and agreed to pay the claim of the insured merely upon obtaining the signature of the insured on a final settlement receipt, constituted an implied but absolute waiver of the sworn proof of loss required by the policy, and not merely an estoppel requiring injury or prejudice to the insured, it was not necessary, as in the case of a technical estoppel, for the plaintiffs to have shown any detriment to themselves by a change, in their legal rights or position. It also follows that, if such a waiver was made with knowledge of the facts and in the absence of fraud, it could not be withdrawn or nullified by the subsequent letter from the adjuster, even if it be assumed that such letter, denjdng that a waiver had been made, should be given the force and effect of an attempted withdrawal.
Moreover, we think that the verdict was authorized even upon the theory of an estoppel, that is, where a consideration by reason of a detriment sustained by the insured from the declarations and acts of the insurer is required. By the terms of the policy the loss was not payable until sixty days after proof of loss was received by the company. The fire occurred July 29, 1932. A few days thereafter, the alleged statements by the adjuster,
Under the Civil Code (1910), § 3434 (Code of 1933, § 57-110), interest eo nomine is not recoverable except where the demand of the plaintiff is liquidated and made “fixed or certain” by “agreement or otherwise.” Insurance Co. of North America v. Folds, 42 Ga. App. 306 (4) (155 S. E. 782). Since the jury were authorized to find from the evidence that the insurance company through its representative agreed to pay the full face amount of the policy covering the undisputed total loss, the verdict was not illegal because it included interest.
The term “bad faith,” as used in the Civil Code (1910), § 2549 (Code of 1933, § 56-706), is “not the equivalent of actual
The verdict for the principal amount of the policy and interest being authorized, and the general and special grounds relating to the alleged waiver or estoppel being without merit under the foregoing rulings, the original judgment of this court is adhered to upon the rehearing, and the judgment of the court below is affirmed upon condition that the plaintiffs, at or before the time the remittitur is made the judgment of the trial court, will write off the erroneous items of $187.50 penalty and $100 attorney’s fee, otherwise the judgment is reversed.
Judgment affirmed on condition. Adhered to on rehearing.