Merchants' & Mechanics' Insurance v. Vining & Bros.

Jackson, Chief Justice. 1. The important question in this case in respect to the charge of the court touching the refusal of the company to pay the policy, and-thereby the waiver of proof of loss, at least so far as not to defeat the recovery here because of the delay in making that proof, has been discussed and decided by this court this morning in the opinion pronounced by Judge CRAWFORD, and hence it is unnecessary to do more than refer to that decision. It may be added to that argument th-at'the terms of these two policies^ both;exactly alike, do not require the forfeiture of the policies, even if nothing equivalent to an absolute waiver had occurred; because the stipulation is that the company shall npt be sued until sixty-days after the proof of loss, and this suit has not been brought sooner than that time. [665] But when a man absolutely refuses to settle with another until the termination of another suit, it would seem that such refusál to settle is an absolute refusal to pay until’ that time has expired ; and as the proof was made in some two months afterwards to the general agent at Columbus, himself, it is difficult to see how the defendant was hurt by any charge bearing oh this point. The time when made is reasonable under all the facts, and it would have been a great wrong to allow the recovery to be defeated on such a point. A great wrong, or that which works a great wrong without some show of reason, cannot be law. 2. Nor can we see what it' matters to this company to whom the money recovered will go, to the parties holding the legal title, or to the usees. If they be garnished as to what they owe the former, they have but to answer the facts, and the court will take care of them and decide as between the usees and the garnishing creditors to whom the money should be paid eventually. If the company itself had any claim against Vining & Bro., any set-off or plea against Vining & Bro., which would not be good against their usees, then indeed the title might be subject matter of inquiry. And so this court has substantially ruled. 62 Ga., 187. The usee might have been stricken or changed, the case cited rules ; and it would be no concern of the company .unless thereby some defense of theirs, as set-off or the like, had been defeated. There is no plea or pretense that it was assigned before the fire, and this disposes of all points in respect to the suit being for the use of the parties named. 3. Most of the requests to charge are in respect to the waiver of proof of loss by the refusal to settle, and are ruled in the case referred to in the first' division of this opinion^ They are mere variations of objection to the charge of the court on that subject, and antagonize the view we take, that what transpired in respect to the re [666] fusal to settle, amounts to a refusal to pay, and would not operate in law to defeat a recovery. 4. The twelfth request is to'the effect that if a certain misrepresentation was made, it would render the policy void. That alleged misrepresentation is that the inventory of the goods in the store was represented in the application as taken in 1878, when it was taken in 1877, and that the stock on hand was worth two thousand dollars, when really it was worth but sixteen hundred dollars. The general charge of the court is full and explicit and strong on the subject of misrepresentations and their effect, and the utmost good faith which the law required in applications for the policy. Still, if there be evidence to support this request, it should have been given. But in examining the record, we do not see that the policy contains a statement by the assured that the stock was worth two thousand dollars on the 3d of December, but the statement is that he answered “about $1500.00 last fall.” So that the request is in part faulty, there being no representation that the stock was worth two thousand dollars. The general charge being sound, and the special request not supported in its entirety by the testimony, we think that the latter should not have been given, and that the court committed no error in refusing it. 5. Under the proof that the. adjuster was an agent of the company, like Willcox, the agent at Columbus, and its general adjuster of losses, sent to adjust this loss, we think that he was as fully authorized as was Willcox to receive the proof of loss, and the company being a foreign corporation, proof of loss could be made to an agent, as this court has held, 62 Ga., 196 ; and as there is proof that it was made to Hawks, the adjuster, within two weeks or thereabouts of the date of the fire, there was no error in the charge, that if such was done in a reasonable time, it sufficed without further proof of loss to the company at Richmond, Virginia, or Willcox, the agent at Columbus. And this view strengthens and settles all that has been [667] held by us touching the effect of refusal to pay, and its effect on waiver of proof of loss for two or three months, so far as this case is concerned, as the proof was given to an authorized agent to adjust the loss in this case, and who was the general agent for Georgia to do that work, within a few weeks, which surely was a reasonable time. 6. There is proof enough to sustain the verdict, though the evidence be conflicting, and the weight of it may incline to the fact that it is somewhat large -r yet when the jury find it and there is evidence to support the finding, and the presiding judge approves it, this court does not interfere; Judgment affirmed.