Concordia Fire Insurance Co. v. Hardman

1. On the trial of an action on a fire-insurance policy it was error to submit to the jury an issue not raised by pleading or evidence in regard to filing proof of loss as required by the policy.

2. It was not error to admit in evidence testimony of acts and conduct of the insurer's agents, for the purpose of showing waiver of proof of loss.

3. Rulings not given as to sufficiency of evidence to authorize the verdict, or as to alleged error in charge to jury on issue of bad faith.

DECIDED OCTOBER 5, 1940. STATEMENT OF FACTS BY SUTTON, J. C. H. Hardman brought suit against Concordia Fire Insurance Company, on behalf of himself and for the use of A. J. Stewart, on a policy of fire insurance, to recover damages alleged to have been sustained to the insured property by reason of a fire, and to recover a penalty and attorney's fees because of alleged bad faith of the defendant in not paying the principal amount of the policy. It was alleged that the amount due under the policy was $500, and that A. J. Stewart, whose interest was covered by a standard mortgage clause, had an interest in the property destroyed, in the sum of $487.90, at the time the suit was filed; and that due proof of loss had been made as required by the policy. When the case came on for trial the plaintiff amended the petition by striking the allegation as to having furnished due proof of loss, and substituting therefor the allegation that "plaintiff at all times stood ready and willing to make due and proper proof of loss, but that defendant's agents or adjusters, C. A. Davis and Doris Nolan and Willimore Jones, by their acts and conduct waived proof of loss." The policy, a copy of which was attached to the petition, provided, among other things, that "no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto; and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached."

The defendant filed an answer denying liability, and setting up that when the property was insured Hardman told the company's agents that it was to be occupied as a dwelling-house and would continue to be so occupied; that instead of being occupied as a dwelling-house the insured property, which was not inspected by the agents, was never so occupied by Hardman or any one, but was in fact unoccupied, the windows and doors being nailed up, contrary to representations of Hardman, and that by reason thereof the hazard was increased and the contract became void. The defendant also denied that any proof of loss was filed, as required by the policy, and denied that there had been any waiver of this policy provision. On the trial the jury returned a verdict for the plaintiff in the sum of $500 principal, $125 penalty, and $100 attorney's fees. The defendant excepted to the overruling of its motion for new trial. The rulings on the grounds of the motion appear in the decision, infra. 1. The plaintiff having stricken from the petition the allegation that due and proper proof of loss, as required by the policy, had been made, and having alleged instead that agents of the defendant had, by their acts and conduct, waived proof of loss, and no evidence having been introduced to show that proof of loss had been filed, the court erred in charging the jury as follows: "The plaintiffs contend they made out the proof under the policy and as required by the terms of the policy, and that Concordia Fire Insurance Company should pay them for their loss. I charge you, gentlemen of the jury, that it would be incumbent upon the plaintiff to make out such proofs of loss, as required by the terms of the policy of insurance sued on in this case, before he would be entitled to recover. You look to the policy, look to the evidence, both oral and documentary; and if any proof of loss was submitted, you look and ascertain whether or not the plaintiff made out such proof of loss, as contended by him in his original petition as amended." The effect of the charge was to submit to the jury an issue in regard to filing proof of loss, as required by the policy of insurance, whereas the pleadings of the plaintiff as amended and the evidence raised no such issue; and as the evidence was conflicting on the real contention of the plaintiff, the alleged waiver of proof of loss by the acts and conduct of the defendant's agents, the charge was calculated to confuse and mislead the jury and constituted reversible error. Southern Railway Co. v. Gresham, 114 Ga. 183 (2) (39 S.E. 883). See Southern Cotton-Oil Co. v. Skipper,125 Ga. 368 (7) (54 S.E. 110); Investors Syndicate v.Thompson, 172 Ga. 203 (2-b) (158 S.E. 20). The court did not charge on the issue of waiver, which was the real issue raised by the pleadings and the evidence.

2. "Insurance policy clauses which prohibit waivers, except such as are indorsed upon the policy by specified officers of the company, usually refer to those provisions which enter into the contract, and do not affect conditions which are to be performed after loss or injury, such as giving notice and furnishing proofs. ``These may be expressly waived, or waived by conduct inconsistent with an intention to enforce a strict compliance with the condition, by which the insured is led to believe that the insurer does not intend to require such compliance.'" Barkley v. American NationalInsurance Co., 36 Ga. App. 447 (136 S.E. 803), citingCorporation of the Royal Assurance v. Franklin, 158 Ga. 644 (3) (124 S.E. 172, 38 A.L.R. 626). "By the weight of authority, an officer or agent otherwise having authority to waive notice or proofs of loss may bind the company by an oral or implied waiver, notwithstanding a stipulation in the policy that no officer or agent shall have power to waive any of its terms or conditions unless the waiver is in writing endorsed on the policy or attached thereto." 33 C. J. 24, § 681. "Generally the agent of a fire-insurance company has power to fill up and issue the policies, and the acts and knowledge of such agent are the acts and knowledge of the company. There is, therefore, manifest propriety in holding that the knowledge of such agent is imputable to the company. This is true even though the policy undertakes to limit expressly the power of the agent." New YorkLife Insurance Co. v. Patten, 151 Ga. 185, 187 (106 S.E. 183). Any act or conduct of the agents of the defendant, shown by the evidence to have been fire-insurance agents, in waiving the necessity of filing proof of loss, would, under the above authorities, be the act or conduct of the defendant; and accordingly the court did not err in admitting in evidence the testimony of certain witnesses, over the objection of the defendant, as to the acts and conduct of such agents, for the purpose of showing waiver of proof of loss.

3. Inasmuch as the case is remanded for another trial because of the error in the charge of the court as dealt with in the first division above, it is unnecessary to rule as to the sufficiency of the evidence to authorize the verdict for the plaintiff, or as to the alleged error of the court in charging the jury on the question of bad faith. The court erred in overruling the motion for new trial.

Judgment reversed. Stephens, P. J., and Felton, J.,concur.