Thomson v. Southern Mutual Insurance , 90 Ga. 78 ( 1892 )

Judgment affirmed,.

Upon the trial Whitehead testified : Thomson is my brother-in-law, and Mrs. Whitehead my wife. I represent them. Made contracts with defendant, one in 1881, and in 1887, with Conner representing defendant The house was burned in March or April, 1888, and was worth about $600. It was occupied by negro tenants. The fire occurred from no fault or cause on my part. Do not remember when I visited the place last before the fire. I had not collected any rent for several months. At the time the second policy was tendered me by the agent, nothing was said as to any change in the policy; if it liad, I would not have continued the insurance. I did not know of the change in the policy until after I made application for the loss ; my attention had not been .called to it before that. The agent has instructions to renew everything without coming to me on each occasion. I knew there was a vacancy clause in the policy. .1 have a good many policies with defendant. The policy of 1887 was handed me at the expiration of six years as a renewal of the contract, and I accepted it as such ; nothing was said as to changes in the policy. The policy of 1887 was brought to me when it was issued, or soon afterwards. It was done through Conner’s agency. I have no specific recollection about the occurrence and facts; had a great many conversations with Connor, but do not remember anything about the circumstances; d.o not remember there was any conversation between me and whoever brought the policy, or whether the policy was brought before or after the expiration of the old policy. Conner had instructions to renew all policies; to renew the insurance as it expired. There was nothing said about the terms or conditions of the policy, or whether the terms were the same. I never read the policy of 1887 when it was brought me, except the amount of it; only read the amount of the policy of 1881; do not think I read the policy of 1881 through until after the fire. When I made the original contract for insurance with defendant there was nothing said as to how long the property should remain vacant. I knew what the general terms were, because I had other property insured with that company, and presumed they were the same, except the rates. When the second policy was brought nothing was said about the delivery of it, and I had no conversation or understanding with the agent of the company about the condition of the policy I had on this particular property. I knew the conditions of the policy of 1881. The policy of 1887 was accepted as a renewal of the policy which had been running. Not one word was said to me about the change of the conditions in it. I do not remember what Conner said to me at that time, it has been so long ago. Randall Thweat was my last' tenant in this property. The last time I was there I saw his sister, who told me he was not at home. I think it was over a month before the fire that I was at the house, but I met his sister' on the road. Randall was not in the house the last time I was there, but his family was. It is not true, of my own knowledge, that the last time I was at the house Randall had moved his family and furniture away.

Connor testified : Boardman issued the policy of 1881, and I was his clerk. I was the agent in 1887. As a matter of geueral information I know the conditions of the policy of 1881. I know the conditions of the policy of 1887. I had no other policy to give Whitehead. When I handed him the policy of 1887, I did not call his attention to that vacancy clause. I knew the vacancy clause of 1881, and knew the change had been made from thirty days to ten in the vacancy clause. I was the company’s agent, not Whitehead’s. I had no instructions from Whitehead about the renewals of his policies, but he asked me generally not to let any of his policies expire without notification. I cannot' recollect any special conversation about it. If there was any conversation as to the time the property could be left vacant, it was after the fire; there was none before. I think I can state positively there was no conversation about the house that burned at all; it just went along. I had general instructions from Whitehead, and whenever I wanted my money I would go to him and collect it, or send. I collected the policy of 1887, for I went to him myself and delivered that policy. The company ran out of the old form and was obliged to reorganize the policy; and the board of directors ordered this policy in lieu of the other one, and the vacancy clause was made ten days.

The policy of 1881, and the clause in question of the policy of 1887, were introduced. Also, a blank form of receipt which "Whitehead testified was in the form receipts were given him, which receipt contained no statement material to this case. Also proofs of loss, objected to as defective, on May 25, 1888, and a positive refusal by defendant to pay, on the ground that the building had been vacant for a longer time than that stipulated in the policy, and was so vacant at the time of the fire, dated June 15,1888. There was further evidence to the effect that the house had been vacant some two or three weeks before the fire. Oiie witness testified that he saw people in the house before the fire, but did not know whether they lived there or not; saw them there two or three days before the fire. In an affidavit made by witness in this case, he may have said that the last time he passed the house was about two weeks before the fire. It was somewhere along there. Witness had no accurate recollection of how long it was before the fire; it might have been longer than two weeks. All he knows is, he saw two or three colored people there when he passed, before the fire; the doors and windows were open; does not know whether there was any furniture there or not, did not see any; cannot say whether they were tenants of the house or people that happened in there. Cannot say positively it was inside of two weeks that • he saw people in the house ; expects it was within a month; would not swear positively about it being inside of two weeks.

Hill, Harris & Birch and M. R.. Freeman, for plaintiffs. Lanier, Anderson & Anderson, for defendant.