Hart v. Waldo

43 S.E. 998, 117 Ga. 590, 1903 Ga. LEXIS 300

• Court: Supreme Court of Georgia
• Decided: April 8, 1903
• Status: Published

Opinions

Simmons, C. J.

1. A representation which is true and not calculated to deceive can not be the basis of an action for deceit.

2. It follows that where, in a suit for deceit against an insurance company and 'one of its agents, the petition alleges that the deceit consisted in the agent’s stating to plaintiff, contrary to the requirements of her policy, that what she had done was all that was necessary with regard to furnishing proofs of loss, and further alleges that the agent had full authority to make this statement and to waive the requirements of the policy as to proofs of loss, a demurrer to the petition should he sustained, for the agent’s statement, acted on by the plaintiff, operated to release her from the obligation to make proofs of loss, and was, therefore, true.

Argued January 15,— Decided April 8, 1903.

Action for deceit. Before. Judge Reid. City court of Atlanta. March 3, 1902.

Mrs. Hart sued Waldo and the Phenix Insurance Company, a New York corporation, in an action for deceit. Her petition stated substantially the following case: She is the owner of, and is entitled to the possession of, a policy of fire-insurance for $1,200, issued by the defendant insurance company, on her house in the city of Atlanta. On December 10, 1897, while the policy was in force, her house was destroyed by fire. The defendant Waldo was at that time, and still is, the local agent- of the insurance company, and had charge of all matters arising out of the policy, including proofs of loss, appraisals, and adjustments. A few days after the fire, she notified Waldo of the destruction of her house, and he informed her that the amount of the loss would have to be determined by arbitration. Accordingly arbitrators were appointed, who made a report fixing the amount of the loss at $870.04. After the return of the arbitrators, the plaintiff “ asked said Waldo if it would not be necessary for her to make oath to the paper, or whatever the return of the arbitrators was,” and he “ answered that it would not be necessary for her to make oath to said paper; that the report of the arbitrators was all that was necessary.” In further conversation with him, she asked him specifically “ if she had anything more to do in regard to proof, and if she had done all that was required of her, and said Waldo answered that she had given all the proof that was necessary.” She then requested him to pay her the amount found by the arbitrators, to which he replied, that, as her policy was a premium policy, he would hold up payment for sixty days, and at the expiration of that time the company would'pay her $870.04. On the sixtieth day after the return of the arbitrators, she went to Waldo’s office, which was also the office of the insurance company, expecting to receive the payment which had been promised her; but she was informed that Waldo was in Florida, and was referred to Stockdell, “ the general agent of said Phenix Insurance Company.” She went to see Stockdell, and was informed that he had nothing to do with the matter, but that it was entirely in the hands of Waldo, whom she must see. Waldo was gone from the city for some time, and she did not succeed in seeing him until about thirty days after the time when he had informed her that the money would be paid to her, which was more than ninety days after the fire. He then told her “ that said Phenix Insurance Company neither admitted nor denied liability under said policy, but would stand upon their legal rights.” The defendants have both ever since refused to pay the plaintiff the sum of $870.-04, or any part thereof, or to adjust or settle with her the amount of the loss or the amount to which she is entitled under her policy. The policy contained a stipulation, in substance, that: “ If fire occur, the insured, . . within sixty days after such fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property, the cash value of each item thereof, and,the amount of loss thereon; all incumbrances thereon; all other insurance, whether valid or not, covering any of said property, and a copy of all the descriptions and schedules in all policies; any change in the title, use, occupation, location, possession, or exposures of said property since the issuing of this policy; by whom and for what purpose any building herein described and the several parts thereof were occupied at the time of the fire,” etc. There was also a stipulation in the policy to the effect that the company should not be held to have waived any condition or provision of the policy, or any forfeiture, by any requirement, act, or proceeding on its part relating to the appraisal or to any examination therein provided for.