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HANOVER FIRE INSURANCE COMPANY OF NEW YORK v. SCROGGS.
34962.
Action on automobile policy. Before Judge Blackshear. Hall City Court. October 3, 1953.
QUILLIAN, J.
1. A trial court may, on its own motion during the same term, after entering an order sustaining a general demurrer as to the plaintiff's petition, amend such order by conditioning its effectiveness upon the plaintiff's failure to amend the petition and cure the defects pointed out by the demurrer.
(b) The petition in the instant case, prior to its final amendment, was sufficient to amend by, and the court did not err in permitting the plaintiff to amend, after sustaining the general demurrer.
2. A contention raised for the first time in the brief of counsel for the plaintiff in error before this court, and which was not advanced or urged before the trial court will not be considered by this court.
3. An absolute refusal by the insurance company to pay a claim of its assured constitutes a waiver of the policy requirements respecting notice and proof of loss. Code 56-831.
(a) Limitations contained in the policy on the authority of agents of the company to bind the company by waiver, etc., do not refer to the stipulations to be performed by the assured after a loss has occurred.
The petition in this case, as amended, set forth facts sufficient to show a loss within the terms of the policy sued on and a waiver by the company, or by its authorized agents, of the requirements of the policy respecting notice and proof of loss, and the trial court did not err in overruling the demurrers interposed there to.
This is a suit in two counts brought by J. H. Scroggs, trading as Gate City Motors, against the Hanover Fire Insurance Company of New York. As amended, the first count of the petition alleged that the defendant, through its authorized agent, Sidney O. Smith, Inc., issued and delivered to the plaintiff its standard automobile policy (a copy of the portion on which plaintiff bases his action being attached, etc.) insuring the plaintiff against theft of automobiles; that the premium required to be paid by the plaintiff had been paid; that on September 5, 1952, while the said policy was in force there was stolen from the plaintiff's automobile sales lot at 100 East Church Street, Gainesville, Hall County, Georgia, a certain 1947 Studebaker club coupe automobile of the value of $895, said automobile being covered by the terms of the policy; that on September 6, 1952, after plaintiff had learned of the theft of the automobile, he called the agent who issued the policy, who was also authorized to accept proof of loss and make adjustments, and talked with one Towson, an authorized agent of the said agency, and requested that he have the defendant reimburse him for the loss; that on September 12 the said Towson called upon the plaintiff at his place of business and told the plaintiff that he was of the opinion that the loss was covered by the policy of insurance and that he would have the defendant send an adjuster to obtain the necessary proof of loss from the plaintiff and adjust his claim; that thereafter on about the first day of October one Hill Hammock, an insurance adjuster of the defendant authorized to receive proofs of loss and adjust claims, called on the plaintiff at his place of business and obtained from him information pertaining to the said loss, all of said information being written down by the said Hammock; that all of said information written down by the said Hammock was transmitted to the defendant by its agent, the said Hammock, is now in the defendant's possession, having been retained by the defendant and accepted by it as proof of the plaintiff's loss, and the defendant by its conduct in so accepting said information given to the said Hammock, and in failing to call upon the plaintiff for additional information or proofs of loss, led the plaintiff to believe that such information so given to the said Hammock was sufficient as proof of loss, and the defendant is now estopped to insist on a literal compliance with the terms of said policy of insurance as to proofs of loss; that the said Hammock first admitted liability on the policy, but later, in bad faith, denied liability; that on or about November 1, 1952, the said Towson denied liability of the defendant on the said insurance policy, "stating to plaintiff that the defendant was not liable on said contract of insurance for the reason that plaintiff had voluntarily parted with possession and title of said automobile, and that he, the said L. R. Towson, Jr., had consulted defendant's attorneys and that they had advised him that the defendant was not liable for said reason;" and that because of the absolute denial of liability of the defendant by its authorized agent, it has waived filing of further proof of loss and is estopped to require a literal compliance with the terms of the policy relative to filing proof of loss.
Count two of the petition is based on the same policy of insurance as the first count and the allegations of that count, so far as they differ from those of count one are as follows: that by said policy of insurance the defendant insured the plaintiff against loss resulting from collision of automobiles within the limits of the policy; that plaintiff has paid the premium required; that on September 5, 1952, while the said policy was in force, one certain 1947 Studebaker club coupe belonging to the plaintiff was wrecked and damaged and rendered totally worthless by a collision in Rochester, New York; that said automobile was covered by the terms of said policy; that on or about November 9, after the plaintiff learned that the automobile had been wrecked, the plaintiff called the agency where the policy of insurance was issued, said agency being also authorized by the defendant to accept proofs of loss and adjust claims, and advised one Davis, a duly authorized agent of the said agency, of said loss and requested that said Davis have the defendant reimburse the plaintiff for said loss; that pursuant to instructions of Davis the plaintiff sent one of his employees to Rochester, New York, to bring the car back to Gainesville, but when said employee arrived in Rochester at the place where the automobile was stored he learned that it was in such condition that it could not be brought back to Gainesville under its own power, and pursuant to further instructions of said Davis, the automobile was left in Rochester; that previously to this the defendant had, on or about October 1, 1952, sent its adjuster to talk with the plaintiff at his place of business, and that said adjuster, one Hammock, obtained information from the plaintiff as to the title to the automobile, the time it was stolen, the date it was stolen, and all facts and circumstances surrounding the theft of the automobile; that the said adjuster was an authorized agent of the defendant and took down this information in writing and transmitted it to the company, not requesting anything further from the plaintiff relative to filing of further proof of loss; that after all that is above related transpired, the defendant has not called upon the plaintiff for any additional information or additional proof of loss; that "the defendant company, its authorized agent, Sidney O. Smith, Inc., and its authorized adjuster, Hill Hammock, led plaintiff to believe that plaintiff had fully complied with all requirements of the defendant relative to furnishing proofs of loss;" and that "defendant, by its aforementioned conduct, has waived further proof of loss and is now estopped to insist on literal compliance with said policy of insurance as to filing further proof of loss."
Both counts of the petition further alleged that the plaintiff was the owner of the automobile involved, that it was covered by the terms of the policy sued on and that the defendant refused in bad faith to pay the claim and sought recovery of the value of the automobile stolen or damaged (in the second count the value less $100 deductible) plus reasonable attorney's fees and damages for bad faith.
It appears from the record that the plaintiff twice amended his petition, that the defendant demurred to the original petition and after each amendment renewed its demurrers. After the second amendment, the trial court on August 19, 1953, overruled the defendant's demurrers. Thereafter, on its own motion, the trial court undertook to reconsider the defendant's demurrers and requested of counsel for both parties that they submit memorandum briefs on the questions raised by the demurrers. On September 17, 1953, which, it appears from the record, was within the same term at which the original order was entered, the court entered a further order vacating the order of August 19, and in said latter order sustained the general demurrer and dismissed the action. On the following day, that is on September 18, 1953, the last order was amended by insertion of the provision that "The plaintiff is allowed until October 3, 1953, in which to present amendments and such dismissal is subject to plaintiff's right to amend." This order recites that it was "done in open court." Thereafter, on October 1, 1953, the plaintiff filed another amendment, which was allowed subject to objection, and on October 3, the defendant filed written objections to the allowance of the amendment and renewed its previous demurrers and filed new demurrers to the petition as amended. The trial court on the same day (October 3, 1953) entered an order overruling the objections to the allowance of the amendment, said order reciting that the court had inadvertently omitted from the order sustaining the general demurrers on September 17, the provision granting the plaintiff the right to amend, and that it had been the court's intention to grant the plaintiff that right; and in the same order overruled the defendant's new and renewed demurrers to the petition as amended. The defendant's bill of exceptions was presented to the trial judge on October 20, 1953, and certified by him on October 21, and the same merely assigns error on the final order and judgment of the court overruling the objections to the allowance of the amendment and overruling the demurrers.
The sole exception contained in the bill of exceptions is to the last order of the court overruling the defendant's objections to the allowance of the last amendment, and overruling the renewed demurrers to the petition as amended. Therefore, no question is presented as to the sufficiency of the petition prior to the last amendment to withstand the demurrers of the defendant, and no question as to the propriety of the court's previous orders overruling the demurrers is for our consideration.
1. The sole objection to the allowance of the last amendment is that "counsel for plaintiff was afforded an opportunity to present an amendment before the original order of dismissal was entered . . . and after the order of dismissal was signed on the ground that the plaintiff's petition failed to state a cause of action there was nothing left to amend by and the amendment as now offered comes too late."
This objection to the allowance of the amendment overlooks the fact that the previous order of the court sustaining the general demurrer expressly provided, in its amended form, that the plaintiff should have the right to amend within the time in which the amendment was offered. That the court had the right so to amend its order and to allow time in which the plaintiff could perfect his petition, is not open to question. Shaw v. Watson, 52 Ga. 201, 202; Lovelace v. Browne, 126 Ga. 802 (1, 2), (55 S. E. 1041); Jolly v. McAdams, 135 Ga. 833 (1) (70 S. E. 254); Hunter v. Gillespie, 207 Ga. 574 (63 S. E. 2d 404); Whitlock v. Wilson, 79 Ga. App. 747, 748 (54 S. E. 2d 474). It was not otherwise erroneous for the court to permit the amendment to the petition if there was enough in the petition to amend by. Code 81-1301. "A petition showing a plaintiff and a defendant, and setting out sufficient to indicate and specify some particular fact or transaction as a cause of action, shall be enough to amend by. The jurisdiction of the court may be shown and the details and circumstances of the particular transaction may be amplified and varied by amendment. If the declaration shall omit to allege facts essential to raise the duty or obligation involved in the cause of action which was evidently originally intended to be declared upon, the omitted fact may be supplied by amendment." Code 81-1302. The petition in the instant case, as amended prior to the last amendment contained enough to amend by under the rules just stated. It is not essential that a petition state a cause of action or be not subject to general demurrer in order to be amendable. It is sufficient if it shows some particular fact or transaction as a cause of action. The petition in this case prior to the last amendment filed contained enough to amend by under the foregoing rules, and it follows that the trial court did not err in overruling the objections to the allowance of the amendment last filed.
2. All of the grounds of general and special demurrer, as set forth in or renewed by the demurrers last filed, and those of the renewed demurrers, the objections raised by which are not cured by amendments later filed, attack the petition on the ground that it fails to set forth a cause of action in that it does not show that the plaintiff has sustained a loss within the meaning of the policy with reference to making proofs of loss, and does not set up facts sufficient to show a waiver of proof of loss.
Ordinarily a general demurrer which merely attacks a petition on the ground that it fails to set forth a cause of action without specifying wherein or how the petition is deficient, is sufficient to raise any and all reasons that might be advanced as grounds for holding the petition invalid. Where, however, it affirmatively appears from the record that the demurring party urged that the petition set forth no cause of action only for certain stated reasons, upon a review of the judgment overruling such demurrer, this court will consider only the specific reason or reasons urged in the trial court as to why no cause of action is set forth. Saliba v. Saliba, 202 Ga. 791, 795 (44 S. E. 2d 744). This is but a specific application of and necessarily follows from the general and well-established rule that only those questions presented for the consideration of the trial court will be considered on appeal, and no question upon which the trial court was not given an opportunity to rule, and no question which it appears is presented for the first time in the appellate court will be considered. Lunsford v. Ferrell, 85 Ga. App. 37, 41 (2) (68 S. E. 2d 153); Bogers v. Taintor, 199 Ga. 192, 196 (33 S. E. 2d 708).
There is a line of decisions giving pronouncement to the time-honored rule that where a general demurrer is sustained, though on the wrong ground, the appellate court will peruse the record to find a ground of demurrer upon which a valid judgment sustaining the demurrer could be based. One case notable among these is that of Crittenden v. Southern Hone Building & Loan Assn., 111 Ga. 266 (5), 272 (36 S. E. 643). This case is followed in numerous recent cases, among which is the case of South View Cemetery Assn. v. Hailey, 199 Ga. 478, 483 (34 S. E. 2d 863).
That the appellate courts will not search the record for other grounds than those presented by demurrer in the trial court, in order to reverse the judgment of the trial judge in overruling the demurrer, is also a well-established rule.
While there is no conflict in these two lines of decisions, our Supreme Court in the case of Linder v. Whitehead, 116 Ga. 206, 210 (42 S. E. 358) made the difference plain by showing that one was based upon the idea that if the trial court is right for any reason though it assign the wrong reason for its ruling, its judgment should not be reversed, while the other is based upon the principle that appellate courts only review rulings that are made in the trial courts and do not look through the record with a view to finding some reason to reverse their judgments. In the Linder case it is said: "In view of the definite mandate embraced in section 5584 of the Civil Code [1895], which was codified from the Supreme Court practice act of November 11, 1889 (Acts of 1889, p. 116), that 'the Supreme Court shall not decide any question unless it is made by a special assignment of error in the bill of exceptions,' it would seem that this court is not at liberty to institute a general search into the contents of a record with a view to upholding a judgment 'if it is right for any reason,' but should confine itself to deciding such questions only as are specifically made and presented for its determination either by a main bill or a cross-bill of exceptions."
Under the foregoing rules, the contention of the plaintiff in error which is urged in the brief of counsel that the first count of the petition fails to state a cause of action because it ineffectually attempts to negative an anticipated defense of the defendant cannot be considered because it does not appear from the record that any such contention was made by the demurrers interposed in the petition or in any other manner presented to or passed upon by the trial court.
3. We next come to consider whether the petition as finally amended stated a cause of action, and under the state of the record before this court this question involves only whether the petition, conceding that it fails to allege compliance by the plaintiff with the requirements of the policy respecting the making proofs of loss, alleges facts sufficient to show a waiver of the formal sworn written proof of loss required under the tends of the policy, and whether the petition shows that the plaintiff has sustained a loss within the terms of the policy.
As to the first of these issues it is sufficient to say that each count of the petition alleges that the plaintiff furnished to authorized agents of the company, including one sent by the company to investigate, secure information about, and adjust the plaintiff's loss, all the information he had concerning the loss, and that in each case after securing such information, and without affording the plaintiff any opportunity to submit further proof of loss, or making any objection to the form or sufficiency of the proof of loss submitted, the agent denied the company's liability and refused to pay the loss. Under the rule that an absolute refusal to pay shall waive a compliance with the preliminaries respecting notice and proof of loss (Code 56-831), and under the rule, represented by such cases as Corporation &c. Assurance v. Franklin, 158 Ga. 644, 653 (124 S. E. 172, 38 A. L. R. 626), and Life Ins. Co. v. Williams, 48 Ga. App. 10 (172 S. E. 101), that limitations contained in the policy on the authority of agents, officers, etc., of the company to bind the company by waiver, etc., have reference to only those provisions of the policy which enter into or form a pail of the contract itself and have no reference to those stipulations which are to be performed after a loss has occurred, such as giving notice and furnishing preliminary proofs, both counts of the petition stated a cause of action and the trial court did not err in overruling the general demurrer. We have carefully studied the cases cited and relied on by the plaintiff in error, and we find that they do not require a ruling different from that now made.
As to the contention that the petition fails to show that the plaintiff has sustained a loss coming within the terms of the contract of insurance, one count of the petition alleges that an automobile covered by the terms of the policy and owned by the plaintiff was stolen, and the second count shows that the same automobile was wrecked by a collision and damaged in a specified sum. The petition together with the exhibit attached thereto shows that the defendant insurance company issued to the plaintiff a policy of automobile insurance covering certain automobiles held for sale by the plaintiff at his used-car sales lot at a specified location in Gainesville. The allegations of the petition itself when considered with the provisions of the policy embodied in the exhibit sufficiently show that the plaintiff has sustained a loss within the terms of the policy.
The Judge of the City Count of Hall County did not err in overruling the demurrers to the petition as amended.
FELTON, C. J., concurring specially. I concur in the judgment and in all of the rulings by the majority except the implied ruling that the petition anticipated a defense. I do not think the petition anticipated a defense. It merely alleged a refusal to pay by the defendant and recited the reason given by the defendant for the refusal. The reasonable intendment of the allegation was only that there was an absolute denial of liability. I do not agree that this court is limited in its consideration of a ruling on a general demurrer to the specific reasons stated in the general demurrer (Saliba v. Saliba, 202 Ga. 791), except where the specific reason is lack of jurisdiction and the demurrer is sustained specifically on that ground. South View Cemetery Association v. Hailey, 199 Ga. 478.
A. C. Wheeler, Wheeler, Robinson & Thurmond, for plaintiff in error.
DECIDED JUNE 23, 1954 -- REHEARING DENIED JULY 27, 1954.
Saturday May 23 03:38 EDT


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