62 Ga. 187 | Ga. | 1879
Of course there is nothing in the point of newly dig-
1. “ The production in evidence of a policy of insurance, such as described in the declaration, together with proof to the satisfaction of the jury that the plaintiff was owner of the property insured, that the property was destroyed, and a bona fide loss of the same by fire, within the titpe limited by the policy, with satisfactory proof of its value, and of a compliance with all the conditions required by the ' policy to be performed on the happening of loss, or of a waiver of the same, would, in the absence of a defense, entitle the plaintiff to a recovery. If the plaintiff’s case fails in any of these particulars she cannot recover.
2. “Every insurer has a right to prescribe regulations as to notice and preliminary proof of loss, which must be substantially complied with by the assured; provided the same are made known at the time of the insurance, and are not materially changed during the existence of the contract. An absolute refusal to pay waives a compliance with these preliminaries. Code, §2813.
3. “ If the loss by fire occurred, and the defendant, or its authorized agent, had notice of the fact, and he viewed the premises, and an appraisement was agreed on, or had, and the matter discussed, and papers prepared and presented relative to the loss, and these negotiations were interrupted, or terminated, by an unconditional announcement from the defendant, or its agent, to the other party that the defendant would not pay, because of want of, or defect of, title,*196 or some question relative to the assignment of tbe policy, and making no allusion to any other objection, this would be the absolute refusal to pay meant by the law, and would be a waiver by the defendant of all conditions as to notice and preliminary proof of loss.”
We see no objection to these several charges. One of them is in the language of the Code, and all appear to us to be in accordance with law. See Code, sections 2803,2813.
Some point was made that the plaintiff had assigned her interest in the policy to Bridget Ennis, her mother, and that for this reason she could not recover. But this assignment was made after the fire which consumed this house, the subject of this suit. Other property was covered by the policy ; and no assignment could be made without the assent of the insurer, and it assented only to the assignment so far as that not consumed was embraced in the policy.
It is objected, also, that the court erred in directing that the plaintiff should write off half the verdict, or a new trial would be granted. Unless entitled to an unconditional grant of a new trial, the defendant cannot complain of this order ; and we have seen that in our judgment, as in that of the circuit court, the defendant is not so entitled.
In conclusion, it is well to say again, that when a case has been brought to this court by a plaintiff in error, the onus is upon him to show from the bill of exceptions and the transcript of the record, error in the court below; and if, on account of an obscure or confused record, or omissions therefrom, such error is not made apparent to us, we have no alternative but to affirm the judgment. Looking at this case from what we can see in this record, and ascertaining as well as we are able from it the truth of the case, we think that this plaintiff is entitled to recover upon this policy, and that there has been made to appear to us no such error in respect to the rulings or charge of the court as requires us to set aside the verdict and to remand the case for á new hearing. Code, §2795 ; 58 Ga., 251.
Judgment affirmed.