Summary
holding that “loss of bathroom fixtures, kitchen sink, plumbing, electric hot water heater, electric refrigerator and window frames and a 50–foot length of sewer pipe” was “due to burglary or theft, which, under the provisions of the policy ... clearly was not covered” when policy insured against perils of “[b]urglary, except with respect to property taken by burglars” and “[v]andalism and malicious mischief” except for “any loss by pilferage, theft, burglary or larceny”
Summary of this case from Auto-Owners Ins. Co. v. NeislerOpinion
37548, 37570.
DECIDED MARCH 18, 1959. REHEARING DENIED APRIL 1, 1959.
Action on insurance policy. Fulton Civil Court. Before Judge Camp. December 10, 1958.
Grady E. Rozar, for plaintiffs in error.
Smith, Field, Doremus Ringel, Palmer H. Ansley, H. A. Stephens, Jr., contra.
1. The allegations of count 1 of the petition showed the occurrence of a loss covered by the policy of fire insurance sued on, and the timely filing of proof of loss, and that count was not subject to the general demurrer interposed by the defendant.
2. Count 2 of the petition was subject to the general demurrer since it alleged facts showing a loss from the insured building due to theft or burglary which was not covered by the policy sued on.
3. The trial court did not err in refusing to try separately the issues raised by the "plea in abatement", since such plea, when viewed in the light of the allegations of the amended petition went to the merits of the whole case.
4. As to count 1 of the petition, to which a demurrer had been interposed and overruled, it was error for the trial court to enter a judgment dismissing the case where the evidence introduced with respect thereto tended to sustain the allegations and show that the plaintiff was entitled to recover some amount on account of loss covered by the insurance policy sued on.
DECIDED MARCH 18, 1959 — REHEARING DENIED APRIL 1, 1959.
Charles Theo and Mrs. Emily Panos sued National Union Fire Insurance Company in two counts to recover for loss and damage to two houses allegedly covered under the provisions of a certain fire insurance policy issued by the defendant which was attached as an exhibit to the petition. Insofar as is material the petition alleged that the plaintiffs owned jointly two houses located in Atlanta, Georgia, one at 3725 Gilbert Road, and the second on Poole Creek Road immediately behind the Gilbert Road house; that these houses were covered each in the amount of $4,000 (which amount was later raised to $6,000), by the exhibited policy of insurance; that said policy was in full force and effect, all premiums having been paid thereon and that it insured the houses for loss due to fire, burglars, vandalism and malicious mischief and other hazards as shown by the policy; that from July 20, 1957, to August 20, 1957, the house located on the said Poole Creek Road was occupied and being rented by Charlie Waters. On or about August 20, 1957, the said Waters moved out of the Poole Creek Road house into the Gilbert Road house; that during the period of August 20, 1957, to September 18, 1957, the said Poole Creek Road house was vacant, and during the said vacancy the said house was completely torn down and destroyed by vandals, the names of which plaintiffs do not know. The walls were knocked and torn down by vandals causing the roof to fall in resulting in the house being totally destroyed.
The petition further alleged that the plaintiff Theo was out of the city from March 25, 1957, until October 18, 1957, and that when he returned he was informed by Mrs. Panos that the Poole Creek Road house had been destroyed, and that on making a quick check of the property, he found this to be true, and on further checking the Gilbert Road house he found that "all the bathroom fixtures, kitchen sink and plumbing, electric hot water heater, electric refrigerator, 12 window frames, [and] 50-foot length of sewer pipe [were] missing;" that he advised the insurance agency and the agent informed him that he would report the loss to the defendant; that, thereafter, on or about April 8, 1958, the defendant sent its adjuster to the plaintiff Theo's house and that while he was there the adjuster secured from the plaintiff Theo a written affidavit under oath informing the plaintiff that such written statement was a proof of loss, and that if any other proof was necessary, he would let him know; that the defendant now has possession of the only copy of said proof at its home office; that the adjuster went to the scene of the loss and made an investigation thereat, and thereafter informed the plaintiff Theo that he would forward the report of his investigation to the home office of the defendant company; that thereafter, on May 26, 1958, the plaintiff Theo was informed by the company's agent that the defendant company had denied the claim and that the defendant refused to pay any amount; that the plaintiffs were the owners of the Poole Creek Road house at the time the vandals destroyed it and had an insurable interest in it, and that the actual cash value of the property at the time of its destruction was $4,000; that at no time did the defendant or any of its agents or employees request any further proof of loss than the one given by the plaintiff Theo on or about April 8, 1958. Count 1 sought to recover for the damage to the "Poole Creek Road" house and Count 2 for the loss of the various fixtures alleged to have been "missing" from the "Gilbert Road house."
The policy attached to the petition provided coverage on the houses insuring them against perils, among others, of "F. Vandalism and malicious mischief", and, "G. Burglars, except with respect to property taken by burglars." With respect to coverage F, the policy contained a limitation and exclusion of "any loss by pilferage, theft, burglary or larceny", and with respect to coverage F and G, it provided that the company should not be liable if the described property had been vacant beyond a period of thirty consecutive days immediately preceding the loss.
The defendant filed what was denominated a "Plea in Abatement" alleging that at no time prior to instituting the suit against the defendant did the plaintiffs file proofs of loss as required by a quoted provision of the policy, and contending that the filing of the proofs of loss within 60 days of the date of the loss was a condition precedent to a suit on the policy. This plea does not appear from the record ever to have been expressly passed on by the trial court. The defendant also filed general demurrers to the petition which were renewed after amendment. The trial court overruled the demurrers on all grounds, and the case went to trial, and after the plaintiffs had introduced the evidence, the defendant moved the court to dismiss the action on the ground that under the evidence and pleadings and provisions of the insurance policy sued on and the applicable law, the plaintiffs were not entitled to recover. The trial court granted this motion and dismissed the case. The assignment of error in the main bill of exceptions is to this final judgment, and in a cross-bill of exceptions the defendant assigns error on the overruling of its demurrers and on the failure of the trial court to grant its demand for a separate trial on the issue raised by the so-called plea in abatement.
1. The policy sued on covered all direct loss to the property caused by vandalism and malicious mischief and by collapse of the building or any part thereof. The allegations of the first count of the petition as amended were sufficient to show a valid and subsisting contract which created a duty on the part of the defendant to pay for any loss or damage occasioned by these causes, and alleged facts showing the occurrence of a loss with respect to the building located on Poole Creek Road covered by the policy sued on. As was said by Judge Parker in J. C. Pirkle c. Co. v. Lester, 79 Ga. App. 512, 515 ( 54 S.E.2d 298), "In determining whether a cause of action is set forth as against a general demurrer the courts have generally stated that all a plaintiff need allege is facts showing the existence of a duty owing by the defendant, a violation of that duty and damages resulting from that violation. 41 Am. Jur., Pleadings, § 78." In the instant case, the contract created the duty on the part of the defendant to repay the plaintiffs for their loss up to the limits of the policy upon the occurrence of a loss insured thereby, and count 1 of the petition alleged the occurrence of such a loss as to the "Poole Creek Road house."
The policy sued on contained the provision that the insured must give immediate written notice to the company of any loss and within 60 days after the loss, unless such time be extended in writing by the company, the insured must render to the company a sworn proof of loss setting out therein specified information. The policy contained no provision forfeiting it for failure to submit the proof of loss within 60 days, but did contain other provisions providing for forfeiture for concealment of material facts, either before or after the loss and for fraud or false swearing by the insured relating thereto. "In the absence of an express stipulation in an insurance policy that the furnishing of a notice, or a proof of loss within the time specified shall be a condition precedent to a recovery, a provision merely that no suit shall be brought on the policy unless all of its requirements have been complied with will not bar an action where the insured failed to furnish the notice or proof within the time required, provided that he did so within a reasonable time after the loss, and in accordance with any other provisions in the policy fixing the beginning of liability at a specified time after receipt of notice or proof of loss and limiting the time for suit after the loss." Godley v. North River Ins. Co., 51 Ga. App. 242 (1) ( 180 S.E. 385). Under the foregoing rule the allegations of the petition in this case were sufficient, if proved, to authorize the jury to find that the plaintiffs had submitted the proofs of loss within a reasonable time after the loss. Since the policy did not provide for a forfeiture for failure to submit proofs within the 60-day period, the petition alleging facts respecting the submission of proofs of loss to the adjuster some six months after the loss and at the time he investigated the loss, was sufficient as against the general demurrer, and the trial court did not err in overruling the general demurrer to the first count thereof. See Boston Ins. Co. v. Harmon, 66 Ga. App. 383, 395 ( 18 S.E.2d 84); Southern Fire Ins. Co. v. Knight, 111 Ga. 622 (1) ( 36 S.E. 821, 52 L.R.A. 70, 78 Am. St. Rep. 216); and Harp v. Fireman's Fund Ins. Co., 130 Ga. 726 (1) ( 61 S.E. 704, 14 Ann. Cas. 299).
2. As to the allegations of count 2 of the petition which sought to recover for the loss of bathroom fixtures, kitchen sink, plumbing, electric hot water heater, electric refrigerator and window frames and a 50-foot length of sewer pipe, the allegations of this count that these items were found by the plaintiff to be "missing", when properly construed, can mean only that the loss with respect to these items and in connection with the Gilbert Road house was due to burglary or theft, which, under the provisions of the policy which are quoted above, clearly was not covered. It follows that the trial court erred in overruling the general demurrer as to count 2 of the petition.
3. The defendants contend in their cross-bill of exceptions that the trial court erred in refusing to try what they denominate as a "plea in abatement" separately. This plea did not raise any issue which it would have been proper to try separately. In the face of the allegations of the amended petition respecting the making of a proof of loss to the adjuster at the time he came to investigate and adjust the loss, this plea amounted to no more than a denial of those allegations of the petition. It raised an issue as to the merits of the case itself and not merely as to the propriety of this proceeding. A plea in abatement is a dilatory plea. "`Dilatory pleas' are such as tend merely to defeat plaintiff's remedy or to delay or put off the suit by questioning the propriety of the remedy rather than by denying the injury; they are merely preliminary steps in the action prior to its substantial defense.
"Pleas in abatement are, likewise, such as only go to defeat the pending action for the time being and question the right to maintain it without going to the merits of the action or tending to show that plaintiff has no cause of action." 1 C.J.S. 27, 28, Abatement and Revival, § 1b. Dilatory pleas are such as may be tried separately from the main case. The so-called "plea in abatement" filed by the defendant in this case, in view of the allegations of the amended petition, if sustained, would have terminated the plaintiff's case. It was a plea to the merits of the plaintiff's action, and it was neither necessary nor proper for it to be tried separately from the other issues raised by the answer of the defendant. It follows that the trial court did not err in denying the request of the defendant to try the "plea in abatement" separately.
4. It is an elementary principle of law that a general demurrer tests the sufficiency of a pleading to set out a cause of action or a defense (Code § 81-304; J. C. Pirkle c. Co. v. Lester, 79 Ga. App. 512, 514, supra), and where the defendant's general demurrer has been overruled, that judgment, until it is reversed or modified by an appropriate proceeding in the appellate courts, is the law of the case and is an adjudication that the plaintiff is entitled to recover. Turner v. Willingham, 148 Ga. 274 (2) ( 96 S.E. 565). It was, therefore, error for the trial court to grant the defendant's motion to dismiss the case at the close of the plaintiff's evidence in the face of the prior unreversed and unexcepted to rulings that the petition set forth a cause of action. Marchant v. New York Life Ins. Co., 42 Ga. App. 11 (1) ( 155 S.E. 221). Even if the ruling complained of be treated as the defendant contends it should, as equivalent to the granting of a nonsuit ( Alabama Great Southern Railroad Co. v. Blevins, 92 Ga. 522 (2), 17 S.E. 836; Edmonds v. Atlanta Newspapers, 92 Ga. App. 15, 19, 87 S.E.2d 415), the evidence with respect to the damages claimed by the plaintiff under the first count was sufficient, at least, to authorize the jury to find some amount in favor of the plaintiff, and the judgment of the trial court, even though it be considered one of nonsuit merely, was erroneous. Brooks v. Rawlings, 138 Ga. 310 ( 75 S.E. 157).
It follows that the trial court erred in overruling the general demurrer to count 2 of the petition, and that all that occurred thereafter in the trial of the case with respect to count 2 and the claim of the plaintiff on account of the "missing" items from the "Gilbert Road house" was nugatory. Since, however, the evidence with respect to the plaintiff's claim on account of the damage by vandalism to the "Poole Creek Road house" was in some measure sustained by the evidence, the trial court erred in dismissing the case or entering the judgment as of a nonsuit as to count 1 of the petition.
Judgment reversed on the main bill of exceptions and judgment affirmed in part and reversed in part on the cross-bill of exceptions. Gardner, P. J., concurs. Townsend, J., concurs specially.
As stated in the majority opinion, this insurance policy covers the peril of "burglars" except as to property taken by burglars, and the perils of vandalism and malicious mischief, except for a loss by pilferage, theft, burglary or larceny in connection therewith. The items listed which were found missing, such as the sink, refrigerator, water heater and so on, are accordingly not covered under this policy. But it is further alleged that the plaintiff "found two doors damaged, walls and floor in bathrooms heavily damaged by some heavy instrument resulting in large holes in the walls and floors." This is the sort of damage which would be covered under both the burglary and vandalism coverages, and which the company would be liable to pay under its contract if a proper claim had been made against it. All that the plaintiff alleges in this regard is that he "made a demand for $1,500, the same representing the actual value of the property listed in paragraph 3 of count II." Construing this allegation against the pleader, it appears that the plaintiff made a demand for the value of the property stolen and not a demand for the amount of damage caused to the remaining real estate. For this reason alone I concur in the judgment of reversal as to count 2 of the petition.