Ætna Insurance v. Sparks

Jackson, Justice. 1. This case arose from a fire as far back as 1866. There seems at one time to have been a suit by Bridget Ennis for this or some other loss in the county court, and counsel dispute in respect to the question, whether or not that is this original case, and whether it has become changed by some sort of amendment into the case before us, or whether this is a new case different from that ? One thing can be gathered with certainty from this confused record, and that is, that the papers were lost at one time and copies thereof have been established under the Code, section 3980 ; and when the case, by the establishment legally of this copy, emerged from the rubbish of ten or twelve years’ of change of counsel and loss of papers, it stood on the records of Fulton superior court as a suit brought by Mary Stanton for the use of Bridget Ennis to recover $1,000.00 for the destruction of her house by fire. It is true, that the establishment of this copy declaration by the court is made one ground of the motion for a new trial, but the nature of the objection thereto, and whether or not at- the time it was established any objection was made thereto, does not appear in the record at all. We take it for granted, therefore, that the copy was legally established, as no valid opposition thereto is made apparent by the plaintiff in error. 2. It seems that the declaration thus established was [193] amended twice, and, as amended, it was demurred to. The first amendment struck out the name oi Bridget Ennis as usee and left the suit to proceed in the name of Mary Sparks alone. It would seem that, as the legal title is in Mary Sparks, this could be done — 43 Ga., 353, Demington vs. Sparks. Indeed, even if the original suit had been in the name of Bridget Ennis, it could have been amended by inserting Mary Sparks for the use of Bridget Ennis — Code, §3486. But the declaration, after á copy had been established, was further amended by inserting therein words to the effect that the insurance company had absolutely declined to pay the loss stipulated for by the policy, and had thereby waived the preliminary proofs provided for in the policy to be made after the fire; and the demurrer is put in argument here, upon the ground that the declaration does not allege that this refusal was made within the sixty days after the fire which are allowed for the making of such proofs. The demurrer was general, and, if well founded, had it been special and pointed out the particular point of objection, it might have been remedied by amendment. Besides, the effect and true intent thereof seems to be, that the refusal was within the time, inasmuch as the allegation is, that thereby the proofs were waived — these proofs having to be made in this time. At all events, we do not see that the declaration should have been dismissed on this ground, and we think that the court did not err in overruling the general demurrer. 3. So that we have Mary Stanton properly in court and suing for the destruction of this house by fire. When the hearing had progressed for some time, and the plaintiff’s case had been presented to the jury by the evidence of Mr. Blanchard, who was the agent of the company when the house was insured, and by her own evidence, the defendant’s counsel moved for a continuance on the ground of surprise at the testimony of Blanchard and of Mrs. Sparks, as is set out in the report of facts. So far as Blanchard’s evidence is concerned, it is the evidence of the defendant’s [194] own agent who made the contract on behalf of defendant, and the defendant should have known all about what he would swear; and, as to Mrs. Sparks’ testimony, that which seems to have surprised counsel was, that she showed that she was the owner of the burnt house and how she acquired title thereto. So far as the record discloses, she was guilty of no fraud or concealment or other trick, whereby defendant misconceived whence she derived title to the house. The man who built the house and who had used it before she went into possession, in connection with her father, was accessible — in Newnan — a short distance from Atlanta — and might have been interrogated — and it was natural that he should have been- — -as to how he built it and to whom he transmitted his lights when he left Atlanta. It seems that there was want of diligence —see Code, §3528; 5 Ga, 75; 10 Ga., 86, 403; and many other cases. Besides, continuances are in the discretion of the circuit court, and this court, even in cases where, if it were an original question it would have granted the continuance, will not control that discretion unless abused. We do not see such abuse here as requires our interference. Code, §3531; Wilkinson vs. Smith, 57 Ga., 609; Young vs. The State, 56 Ga., 405, 4th head of opinion. 4. The next ground in the motion for new trial is newly discovered evidence. That consists of the affidavit of Mr. Lewis, whose evidence was accessible and could have been procured, and this ground seems to fall with the last, lacking the support of that due diligence which the law requires. Besides, it rather confirms than overthrows the evidence of Mary Sparks, showing that in the main her statement is correct. It is true that he couples her father with the plaintiff in the gift or sale of the house, but as it is an ex aparte affidavit, and as he fully confirms her about old Mr. Ennis objecting to the removal of the malt, on cross-examination, or refreshing his memory, he might have agreed, and probably would have with her. Of course there is nothing in the point of newly dig195 covered evidence of Blanchard. He was a witness on the stand and examined, and was, besides, the agent of the defendant. 5. The next ground is that the verdict was against certain portions of the charge. The judge who made the charge did not think so, and as he gave it and heard the evidence we will not overrule his judgment, it not being clear to us that the verdict is so much against it as to be against law. 6. It is next said that the court erred in charging as follows : 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. 7. There is no pretense that ?the house was not burnt, none that the plaintiff had aught to do with the fire, none that it was not worth the sum found by the jury, and the defense seems to us to have been, and to be, technical throughout. Blanchard, the Georgia agent, investigated Mrs. Sparks’ title; was satisfied with it; told the company so, and the company insured the house. Within two days after the fire he was notified; the matters in dispute were left to arbitration ; the loss was fixed at $1,000.00; the company refused to pay on account of title, or of the assignment of the policy, though the assignment even of the burnt-house part of the policy, was assented to by the company, according to defendant’s position; the probabilities are strong that the refusal was within the sixty days fixed for proof of loss; no time was lost to communicate the fact of the burning to Blanchard, the defendant’s agent; Mary Stanton (or Mary Sparks now), her husband, and Bridget Ennis, her mother, all notified the agent in person two days after the fire; the agent appears to have acted promptly in communicating with the company at its principal office; such was his duty, and if he did not it was not the fault of Mary Stanton and those interested with her; the corporation was foreign to Georgia, he was its agent, and notice to him was notice to the corporation, so far as-the people of this state dealing -with the corporation through this agent could be affected; the plaintiff, Mary Stanton, had an insurable interest; she certainly owned the house, according to the evidence before the jury, and she, with her father, got it from him, according to the ex pwrte affi [197] davit of Lewis; and her father may have given her his share, if he had any in reality; the jury passed upon the question of ownership, and the evidence supports the verdict. 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.