Thornton v. Germania Fire Insurance

Broyles, C. J. (After stating the foregoing facts.) Whether the court erred in striking paragraph 5 of the amendment to the petition is the controlling question in the case; and, in view of the fact that this question is one of first impression in Georgia, and for that reason was by this court certified to the Supreme Court, and by that court returned to this court without instructions, the Justices being equally divided in opinion on the question, we think it advisable to discuss this subject at some length. While neither appellate court in this State has ever passed upon the question whether a compliance with such a provision in a policy of fire insurance as the one under consideration is a condition precedent to the right to sue, we find that it has frequently been passed on by other courts of last resort, beginning with a series of English decisions rendered nearly a century and a half ago and shortly after policies of fire insurance first came into general use. As early as 1785 we find a case of Oldman v. Bewicke, cited in a note in 2 H. Bl. 577, construing a provision of an insurance policy [657] which required the insured to “procure a certificate, under the hands of the minister and churchwardens, together with some other reputable inhabitants of the parish not concerned in such loss,” to substantially the same facts, in effect, as are specified in the provision in the instant case, and it was there held that a compliance with such a provision was a valid condition precedent to the right to sue. This decision was four years later adhered to in the case of Routledge v. Burrell, 1 H. Bl. 254. The question was again presented and adjudicated in accordance with the above cases in Worsley v. Wood, 6 Term Rep. 710, where Lord Kenyon, delivering the opinion of the court, declared the reasons for the decision to be, that the insurer, in order to protect himself against' fraud, had the right, to say, and by the terms of the policy had said, that he would pay no loss except upon the certificate of the person specified; that the insured, by accepting the policy, assented to this condition, and came within the rule by which one who engages for the act of a stranger must procure the act to be done, and the refusal of the stranger, without the interference of the other party, is no excuse. See also, to the same effect, Scott v. Phoenix Ins. Co., Stuart, 354; Mason v. Harvey, 8 Exch. 819; Langel v. Mutual Ins. Co., 17 Upper Canada, Q. B. 524. The American decisions upon this subject are predicated upon the English rule above stated, and are practically uniform in holding that, where a policy of insurance provides that a loss shall not be payable until the insured produces a certificate of a magistrate or notary, or other officer, to certain required facts, the production of such certificate is, unless waived by the company, a condition precedent to the right to sue. See Central City Ins. Co. v. Oates, 86 Ala. 558 (6 South. 83, 11 Am. St. Rep. 67); Leigh v. Springfield &c. Ins. Co., 37 Mo. App. 542; Edgerly v. Farmers’ Ins. Co., 43 Iowa, 587; Roumage v. Mechanics’ Fire Ins. Co., 13 N. J. L. 110; Nooman v. Hartford Fire Ins. Co., 21 Mo. 81; Leadbetter v. Ætna Ins. Co., 13 Me. 265 (29 Am. Dec. 505); Daniels v. Equitable Fire Ins. Co., 50 Conn. 551. These cases not only hold that a strict compliance with the condition is essential to a recovery, but expressly declare, as is contended by the insurer in .the instant case, that the refusal of the nearest magistrate, notary, or other officer, to malee and execute the required certificate will not excuse performance on the pari of the insured. In [658] Johnson v. Phœnix Ins. Co., 112 Mass. 52 (17 Am. R. 65), the court said: “ At the trial of tire present case, it was admitted that the plaintiff did not furnish the certificate required by the poney, and there was no evidence that the defendant did anything to prevent his getting a certificate, or to waive the want of one. His application in good faith to the proper magistrate for the requisite certificate could not enable him to maintain the action; for the condition precedent to the right to sue was, not that he should use his best efforts to procure, but that he should procure, the certificate. He has not, therefore, proved the case upon which the defendant promised to indemnify him.” To the same effect see Lane v. St. Paul Fire & Marine Ins. Co., 50 Minn. 227 (52 N. W. 649, 17 L. R. A. 197), where the court, in passing upon a provision identical with the one under review, held, “ that the furnishing of this certificate, if required, is a condition precedent to the right of the insured to recover, and that his inability to furnish it because of the refusal of the magistrate or notary public, for any cause whatever, to give it, will not relieve or excuse him from performance of the condition.” In addition to the above cases see also the following decisions where this doctrine is affirmed. Ætna Ins. Co. v. People’s Bank of Greenville, 62 Fed. 222 (10 C. C. A. 342); Gilligan v. Commercial Fire Ins., 87 N. Y. 626; Commonwealth Ins. Co. v. Sennett, 41 Pa. St. 161; Mueller v. South Side Fire Ins. Co., 87 Pa. St. 399; Kelly v. Sun Fire Office, 141 Pa. 10 (21 Atl. 447, 23 Am. St. Rep. 254). In fact, the Supreme Court of the United States, in the case of Columbia Ins. Co. v. Lawrence, 2 Pet. 25 (7 L. ed. 335), speaking through Chief Justice Marshall, held that where a policy required the production of a certificate from a magistrate or notary of the town or county in which the fire happened, as to certain facts (substantially the same as those in the instant case), the insured could not recover in the absence of such certificate, and that a certificate which had been furnished but which did not fully comply with the requirements of the condition of the policy, would not be accepted. When that case came before the same court seven years later, the principle was reaffirmed by Mr. Justice Story, 10 Pet. 507 (9 L. ed. 512). We are not now dealing with a case where the insured furnished the insurer with a certificate from a magistrate or notary public [659] not nearest the scene of the fire, after the “nearest” magistrate had capriciously refused to give the requisite certificate. It might be that such a state of facts would warrant a holding that the insured had sufficiently complied with the provision of the policy requiring him to furnish a certificate from the “nearest” magistrate or notary public. See, in this connection, Leigh v. Springfield Fire & Marine Ins. Co., 37 Mo. App. 542(4), where it was held that “ The fact that the policy requires a certificate of the nearest justice of the peace as a part of the proofs, and that the nearest justice refuses to give the requisite certificate, does not dispense with the necessity for proofs of loss; but, semble, the capricious refusal of the justice to give the certificate would not prevent a recovery if the requirement for proofs were otherwise complied with, and the certificate of another justice obtained.” The only case cited us as being against the above overwhelming weight of authority is German-American Ins. Co. v. Norris, 100 Ky. 29 (37 S. W. 267, 66 Am. St. Rep. 324), and what the court there said upon this question was apparently obiter dictum. It is contended, however, by counsel for the insured that however this question may have been decided in other judicatories, the provision under consideration is made inoperative and void in this State by sections 3718 and 4225 of the Civil Code of 1910. Section 3718 is as follows: “ A condition repugnant to the estate granted is void; so are conditions to do impossible or illegal acts, or which in themselves are contrary to the policy of the law.” Section 4225 is as follows: “ Impossible, immoral, and illegal conditions are void, and are binding upon no one.” In our opinion the mere reading of these code sections shows that they are not applicable to the question under consideration. Moreover, while it is true that in some States such a provision as the one under consideration has been expressly or impliedly prohibited by statutes regulating the form of insurance policies (see Shannon v. Hastings Mutual Ins. Co., 2 Ont. App. 81; Aurora Fire Ins. Co. v. Johnson, 46 Ind. 315), in this State such a stipulation has been incorporated into the Georgia standard policy by the insurance commissioner, under the authority vested in him by the act of 1912 (Acts 1912, p. 119), section 23 of the act being as follows: “That each and every fire-insurance company doing business in this State shall adopt and write a standard or uniform [660] policy, such as may be prescribed by the Commissioner, and it shall be unlawful to issue any other class of policy in this State.” It follows from what has been said that the trial judge properly struck paragraph h of the amendment to the petition. We also think the court did not err in striking paragraph e of the same amendment. The allegation in this paragraph that the defendant had waived the furnishing of the certificate was based solely upon the letter annexed thereto, and this letter was not sufficient within itself to support the allegation, especially since it contained the express statement that it was written without waiving any of the defendant’s rights. The trial judge, sitting by consent as the trior of the facts, having found upon the hearing of the defendant’s special plea in abatement that the defendant had required the insured to furnish the certificate^ in question, this court can only inquire if there was any evidence to support this finding. Upon a careful review and consideration of the evidence adduced, we think that the finding was supported by some evidence. It follows that this court has no authority to reverse the decision of the lower court in overruling the motion for a new trial, which contained only the usual general grounds. Judgment affirmed. Bloodworth, J., concurs.