21 Ga. App. 333 | Ga. Ct. App. | 1917
Lead Opinion
(After stating the foregoing facts.) While we think the stipulations contained in the policy of insurance attached to the petition clearly indicate that the insured liquors were kept by the plaintiff for the purpose of illegal sale, still, in order to make out a violation of the prohibition law of 1907 (Penal Code of 1910, § 426), it is wholly unnecessary to show for what-purpose the intoxicants were kept at the place of business, the criminal act in such a case being merely the keeping on hand of such_liquors at such a place. Cohen v. State, 7 Ga. App. 5 (65 S. E. 1096). Therefore the only question raised in this case which requires further consideration and discussion is, whether the contract of fire insurance covering the liquors so illegally kept was so closely related to the unlawful act as to be a part of that transaction, and therefore void. It is well settled that where the parties to a contract are in pari delicto, no affirmative relief of any kind will be given to one against the other.
The exact question at issue does not appear ever to have been passed upon by either of the appellate courts of this State. The. decisions of other jurisdictions upon the subject are not entirely harmonious, and from them no exact and uniform rule can be adduced. Some of the courts have held that a policy of insurance, somewhat but not altogether similar to the one here involved, is not impaired by reason of the fact that the property covered by its terms may have been kept for illegal sale. Mechanics’ Ins. Co. v. Hoover Distilling Co., 182 Fed. 590 (105 C. C. A. 128, 31 L. R. A. (N. S.) 873); Erb v. German-American Ins. Co., 98 Iowa, 606 (67 N. W. 583, 40 L. R. A. 845). In many jurisdictions the contrary rule has been adopted. Kelly v. Home &c. Ins. Cos., 97 Mass.
Judgment affirmed.
Dissenting Opinion
dissenting. I do not agree to the conclusion reached by the majority of my brethren in this case. Hnder the law at the time of the execution of this contract of insurance (1915) a person could have a property right in, and could hold as property-, wines, beers, and liquors. It is my opinion that when the State declares by statute that property may be owned by its citizens, such property may be insured as against loss by fire. In this case it was not the use to which the property might be put that the contract of insurance covered, but the contract was for an indemnity