Alwood v. Commercial Union Assurance Co.

Court of Appeals of Georgia

Alwood v. Commercial Union Assurance Co.

131 S.E.2d 594, 107 Ga. App. 797, 1963 Ga. App. LEXIS 989

CourtCourt of Appeals of Georgia

DecidedApril 19, 1963

Docket40073

StatusPublished

Cited by5 cases

This text of 131 S.E.2d 594 (Alwood v. Commercial Union Assurance Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Alwood v. Commercial Union Assurance Co., 131 S.E.2d 594, 107 Ga. App. 797, 1963 Ga. App. LEXIS 989 (Ga. Ct. App. 1963).

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Opinions

Felton, Chief Judge.

The lease involved in this case provided: “The landlord shall not be required to make any improvements upon said property, nor to make any repairs upon any improvements that may be erected upon said property by the tenant.” There was no provision in the lease requiring [798]*798either the landlord or the tenant to replace or repair the property leased in the event of damage by fire or otherwise. The tenant restored the premises without the knowledge or consent of the landlord. The contention of the insurance company is that the insurance policy is a contract of indemnity, that the landlord did not suffer any pecuniary damage because of the restoration of the property by the tenant, and that hence there is no liability on the part of the insurance company. The contention of the landlord insured is that the restoration of the premises by the tenant was a voluntary act, that the tenant occupied the position of a volunteer and that the tenant’s restoration of the premises under the circumstances did not have the effect of obliterating the pecuniary damage which the landlord suffered by reason of the fire at the time of the occurrence of the fire. It is true that a fire insurance contract is one of indemnity against loss by an insured. Norwich Union Fire Ins. Soc. v. Bainbridge Grocery Co., 16 Ga. App. 432 (85 SE 622); Atlantic Steel Co. v. Hartford Fire Ins. Co., 39 Ga. App. 680 (148 SE 286); Firemen’s Fund Ins. Co. v. Pekor, 106 Ga. 1 (31 SE 779). The briefs of the parties in this case are taken up with discussions of two lines of authority relating to the question before us. We do not think that the facts in any of these cases bring it within the rule which must be applied in the instant case. In some of those cases, if not all, there was a duty upon one other than the insured to replace the damaged property, or both the landlord and the tenant insured the property and one of them restored it with money collected from the insurance on the property. The cases cited by the parties come under rulings made that are called the Wisconsin rule on the one hand and the New York rule on the other. These rules and the cases referred to are cited and discussed in Citizens Insurance Company of New Jersey v. Foxbilt, Inc., 53 ALR2d, p. 1376 (U.S. Court of Appeals, 8th Circuit, 226 F2d 641) and annotation following the reported case on p. 1383. In this case the tenant in restoring the property acted as a volunteer, although he was an interested party to the contract and his interests were affected. He was under no obligation, legally or morally, to restore the damaged premises and the result is the same as if the landlord’s father or grand[799]*799father had restored the premises as a gift, for the benefit of the landlord, in his absence and without his knowledge or consent. In truth, there is no windfall to anyone resulting from the lack of damage and loss to the insured. He suffered a loss at the time of the fire which under the facts can only be compensated for by the insurance policy. The act of the tenant was a gratuity and in law could not and did not have the effect of dissolving the landlord’s or insured’s loss. See Foster v. Equitable Mutual Fire Ins. Co., Gray’s Reports (Mass.) 68 Gray, 216.

The court erred in granting the defendant’s motion for a summary judgment.

Judgment reversed,

Eberhardt and Bussell, JJ., concur.

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Felton, Chief Judge.

The lease involved in this case provided: “The landlord shall not be required to make any improvements upon said property, nor to make any repairs upon any improvements that may be erected upon said property by the tenant.” There was no provision in the lease requiring [798]*798either the landlord or the tenant to replace or repair the property leased in the event of damage by fire or otherwise. The tenant restored the premises without the knowledge or consent of the landlord. The contention of the insurance company is that the insurance policy is a contract of indemnity, that the landlord did not suffer any pecuniary damage because of the restoration of the property by the tenant, and that hence there is no liability on the part of the insurance company. The contention of the landlord insured is that the restoration of the premises by the tenant was a voluntary act, that the tenant occupied the position of a volunteer and that the tenant’s restoration of the premises under the circumstances did not have the effect of obliterating the pecuniary damage which the landlord suffered by reason of the fire at the time of the occurrence of the fire. It is true that a fire insurance contract is one of indemnity against loss by an insured. Norwich Union Fire Ins. Soc. v. Bainbridge Grocery Co., 16 Ga. App. 432 (85 SE 622); Atlantic Steel Co. v. Hartford Fire Ins. Co., 39 Ga. App. 680 (148 SE 286); Firemen’s Fund Ins. Co. v. Pekor, 106 Ga. 1 (31 SE 779). The briefs of the parties in this case are taken up with discussions of two lines of authority relating to the question before us. We do not think that the facts in any of these cases bring it within the rule which must be applied in the instant case. In some of those cases, if not all, there was a duty upon one other than the insured to replace the damaged property, or both the landlord and the tenant insured the property and one of them restored it with money collected from the insurance on the property. The cases cited by the parties come under rulings made that are called the Wisconsin rule on the one hand and the New York rule on the other. These rules and the cases referred to are cited and discussed in Citizens Insurance Company of New Jersey v. Foxbilt, Inc., 53 ALR2d, p. 1376 (U.S. Court of Appeals, 8th Circuit, 226 F2d 641) and annotation following the reported case on p. 1383. In this case the tenant in restoring the property acted as a volunteer, although he was an interested party to the contract and his interests were affected. He was under no obligation, legally or morally, to restore the damaged premises and the result is the same as if the landlord’s father or grand[799]*799father had restored the premises as a gift, for the benefit of the landlord, in his absence and without his knowledge or consent. In truth, there is no windfall to anyone resulting from the lack of damage and loss to the insured. He suffered a loss at the time of the fire which under the facts can only be compensated for by the insurance policy. The act of the tenant was a gratuity and in law could not and did not have the effect of dissolving the landlord’s or insured’s loss. See Foster v. Equitable Mutual Fire Ins. Co., Gray’s Reports (Mass.) 68 Gray, 216.

The court erred in granting the defendant’s motion for a summary judgment.

Judgment reversed,

Eberhardt and Bussell, JJ., concur.

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131 S.E.2d 594, 107 Ga. App. 797, 1963 Ga. App. LEXIS 989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alwood-v-commercial-union-assurance-co-gactapp-1963.

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