Liverpool & London & Globe Insurance v. Ellington , 94 Ga. 785 ( 1894 )

Simmons, Justice.

1. It appears from the record that on November 1st, 1892, the Liverpool and London and Globe Insurance Company issued to Ellington a policy of insurance for-the term of one year, upon a certain stock of goods and storehouse in the town of Saussy, Ga. On December 29th, 1892, the property insured was destroyed by fire. On December 30th, 1892, Ellington made a written assignment of the policy to the Savannah Grocery Company. Subsequently this action was brought by Ellington, for the use of the assignee. When the case came on for trial, the defendant moved to dismiss the same on the ground that it appeared from the allegations in the declaration that Ellington had no legal title nor any equitable interest in the policy, and hence no action could be maintained by him either for himself or for the use of the Savannah Grocery Company. This motion was overruled, and the defendant excepted.

It is undoubtedly true that sound principles of pleading require that an action shall be brought by the person having the legal interest therein, and this action should have been brought by the assignee without Ellington as a party. If the defendant had demurred specially upon the ground that Ellington was not entitled to institute the action, the court should have dismissed it, unless the declaration was amended by striking therefrom the name of Ellington as plaintiff. One of the objects of a special demurrer to a declaration is to require the plaintiff to amend the declaration in matters of form, and if he refuses to amend, the court may dismiss the action. But a motion to dismiss an action for improper joinder of parties is a different thing from a special demurrer, which, as above indicated, is predicated on the theory that the declaration needs amendment in matter of form, while the motion to dismiss is upon the theory that the action cannot proceed at all, because there is no cause of action. "While it would have been better pleading to have brought this action in the name of the assignee, yet as against a motion to dismiss, the court did not err in allowing the action to stand. The fact that the names of the assignor and the assignee were both in the declaration, one suing for the use of the other, did not make it void so that no recovery could be had thereon. It could have been amended at any time by striking the name of the assignor, and the rights of the defendant were not prejudiced by having both parties before the court. Any defence the defendant may have had could have been set up as well with the declaration in this form as it could have been if the assignee had sued alone; and a judgment in the case would bind both the assignor and the assignee. "What substantial difference, then, could the bringing of the suit in this form make to the defendant, if none of its rights were prejudiced thereby ? See Gilmore v. Bangs, 55 Ga. 403; Chicago Cheese Co. v. Smith & Cothran, ante, 663.

2. One of the conditions of the policy declared upon was, that if the property should be destroyed by fire, the insured should furnish the insurance company with proofs of loss within a specified time. The original declaration alleged that the plaintiff had “complied with all the conditions precedent to a recovery.” On the trial of the case the plaintiff was allowed to amend his declaration by alleging, that the proofs furnished were not satisfactory and were returned as objectionable and insufficient; that the company’s adjuster absolutely refused to pay the loss, saying that it would have to be adjusted in the courts; and that this refusal constituted a waiver by the company of its right to insist upon or require the plaintiff to furnish the preliminary proofs of loss required by the policy, and consequently he did not furnish them. The defendant demurred to the amendment, and to the entire declaration, upon the ground that the declaration as amended was double, and that because of duplicity, the plaintiff should be put to his election thereon. The court overruled the demurrer and refused to compel the plaintiff to elect, and to these rulings the defendant excepted.

This amendment did not change the cause of action, as was insisted upon by counsel for the plaintiff in error. The cause of action was a breach of the contract; the amendment related to the manner of proof. In the original declaration the plaintiff alleged that he had complied with all the conditions of the policy; in the amendment he averred that he had not complied with certain of those conditions, because the defendant had waived compliance. This in our opinion meant that he abandoned that part of the original declaration which alleged compliance with the conditions referred to, and would not rely upon it, but would rely upon the waiver. Where a plaintiff, having averred in his original declaration a certain state of facts, subsequently amends it by alleging another state of facts inconsistent with the first, he abandons or cancels the first averment, and it is virtually stricken by the allowance of the amendment. The better practice would be to take an order striking the first allegation from the declaration, or else enlai’ge the amendment so as expressly to expunge that allegation or substitute the new matter for it.

3. There was evidence to the effect, that after the fire one O’Connor visited the place where it occurred, and that the agent who had issued the policy recognized him as an adjuster of the company, and as such he examined somewhat into the loss. This evidence was wholly uncontradicted and unanswered, although O’Connor and this agent were present at the trial, and in our opinion was sufficient proof of O’Connor’s agency for the company. The i’ecord further discloses that he negotiated with the insured in regard to the payment of the loss, instructed him how to make proofs of loss, and the proofs were sent to him and returned by him as insufficient, and finally he refused absolutely to pay the loss and referred the insured to the courts for redress. These facts, unexplained, constituted, prima facie a waiver on the part of the company of the preliminary proofs of loss. Although some illegal evidence was admitted and some error committed by the court in charging the jury, both as to agency and waiver, we are satisfied, after a careful examination of the evidence in the record, that the verdict was correct, save as to damages and attorney’s fees; and as the case, under the evidence, could have no other legal result than a verdict for the plaintiff', we decline to award a new trial, but direct that the damages and attorney’s fees be written off from the judgment.

4. At the conclusion of the plaintiff’s evidence the defendant moved for a nonsuit. One of the grounds of this motion has already been dealt with as a ground of the motion to dismiss the action, — namely, that prior to the institution of the action Ellington had parted with his entire interest in the policy. Of course if this was not sufficient as a ground for the motion to dismiss the action, which is in the nature of a general demurrer, it is not sufficient as a ground for nonsuit. The second ground of the motion for nonsuit was, that the plaintiff had covenanted to “keep a set of books showing a complete record of business transacted, including all purchases and sales both for cash and credit,” as stated in the policy, and in the event of a failure to produce the same, the policy to be void; and that he had failed to keep a set of books or to produce the same showing his cash sales, and therefore the action could not be maintained. The record discloses that the plaintiff did keep a set of books, in which were entered his purchases and sales, both for cash and on credit, and that he kept a cash account, though he did not keep what is usually termed a cash-book, showing daily cash sales or a distinct record of merchandise sold for cash. The plaintiff and his bookkeeper testified, however, that they could ascertain and did ascertain from these books the amount of cash and credit sales. Under the clause referred to, it was not indispensable that the books kept should embrace what is usually termed a cash-book, or that the books should be kept on any particular system. It was sufficient if the books were kept in such manner that, with the assistance of those who kept them or .understood the system on which they were kept, the amount of purchases and sales could be ascertained, and cash transactions distinguished from those on credit, although it might be slow and difficult to do this. The plaintiff and his bookkeeper having testified as above stated, and the books themselves being before the jury, the court did not err in refusing a nonsuit on this ground. The fact, however, that the books were complicated and difficult to be understood, by reason of their not being kept on some clear and regular system, afforded a good reason on the part of the company for being'unwilling to pay in full, when the statement from the books furnished to the adjuster appeared to him to show a much less loss than that claimed by the plaintiff. The evidence shows that it took the person who kept the books a long time to show how much of the goods were sold for credit and how much for cash, and that to do this he had to resort to complicated calculations. Under this state of facts, we think it was not bad faith for the agent to refuse to pay the whole of the loss claimed. The fact that under these circumstances he offered to pay four fifths of the amount claimed, should itself negative bad faith on the part of the company. The verdict was wrong, therefore, in so far as it awarded damages and attorney’s fees against the defendant.

5. Under the facts, there was no abuse of discretion in denying the motion for a continuance.

Judgment affirmed, with direction.