181 Ga. 848 | Ga. | 1936
Lead Opinion
The Union Dry Goods Company, a corporation, filed a suit against National Surety Company, a corporation of New York, to recover on a policy of indemnity insurance, dated August 25, 1913, obligating the insurer to make good any .loss occasioned by acts of personal dishonesty, etc., on the
Whether the right of action was barred because of a failure to give notice of a claim within six months after termination of liability depends upon a construction of the above stipulation. On the foregoing finding of facts the auditor ruled that the motion to dismiss should be sustained, and the claim be disallowed. The Union Dry Goods Company filed timely objections to the auditor’s conclusion of law, but-none as to his finding of facts. The order sustaining the motion to dismiss was sustained by the court, and the petitioner excepted. Counsel for both sides present helpful briefs, indicating an exhaustive search for precedents, and citing with fairness the result of such inquiries. Both briefs show that there is no controlling decision of this court. Mayor &c. of Brunswick v. Harvey, 114 Ga. 733 (40 S. E. 754), and Third National Bank of Columbus v. Fidelity & Deposit Co., 145 Ga. 123 (88 S. E. 584), are cited as throwing some light on the question. Those cases turned on different provisions in the contract. A number of cases from other States are cited, but none of them need be discussed or named here, except two, shown in both briefs as leading decisions holding contrary views. These are First National Bank v. National Surety Co., 228 N. Y. 469 (127 N. E. 479), dealing with the identical provision that is
Rehearing
ON MOTION ROE REHEARING.
Movants request a rehearing for the purpose of curing a ruling by the court on a question of law other than and different from that already decided in this case. Plaintiffs in error, complying with a rule of this court, stated the issues of law involved in the case to be two in number. The first issue was the question concededly decided by this court, and the decision was accepted by movants. They insist, howeyer, that the court did not decide the second question. That question was not decided by this court for the reason that the decision of the other question was considered to be controlling in this ease. If a case should arise which involves the issue stated in the second question, and there were no facts such as are dealt with in the decision already rendered, it would be appropriate to decide the second question. In the present instance it would be useless. The decisions cited by movants, Southern Fire Insurance Co. v. Knight, 111 Ga. 622