Hartford Fire Insurance v. Payne

112 S.E. 736, 28 Ga. App. 655, 1922 Ga. App. LEXIS 758

• Court: Court of Appeals of Georgia
• Decided: June 14, 1922
• Docket: 13099
• Status: Published

Opinion

Bloodworth, J.

The Hartford Fire Insurance Company brought suit in a justice’s court in Pike county, filing a formal petition against the Federal director-general of railroads, alleging in part: “ Your petitioner shows that it is the assignee of a right of action, involving only property rights, of one E. L. Hooten, owner of certain cotton insured by plaintiff and destroyed by fire through the negligence of the defendant herein, plaintiff having paid to said E. L. Hooten damages herein named, and having been subrogated by written assignment by said E. L. Hooten to all rights, claims, interest, choses or things in action, to the extent of said damages paid. A copy of said written assignment is hereto attached, marked c Exhibit A,’ and made a part of this petition.” Exhibit A is, signed by E. L. Hooten, and is as follows: “ Be it known that the Hartford Fire Insurance Company, of Hartford, Conn., did insure E. L. Hooten under policy No. 85 as follows: $750 on cotton in bales, while contained in Williamson Gin and Warehouse Company warehouse, Williamson, Georgia. Further that on the 13th day of March, 1919, a fire occurred by which the property so insured was damaged or destroyed to the amount of thirty-eight and 46/100 dollars, such fire having been caused by sparks from locomotive, as informed and believed. Now therefore, in consideration of thirty-eight and 46/100 dollars, to me in hand paid by the Hartford Fire Insurance Company in full settlement of my claim against said company by reason of such insurance and loss, do hereby assign, set over, transfer, and subrogate to the said Hartford Fire Insurance Company all the right, claims, interest, choses or things in action, to the extent of thirty-eight and 46/100 dollars, paid me as aforesaid, which I may have against the railroad company, or any other party, person, or corporation, who may be liable to [ ?] hereafter adjudge liable for the burning or destruction of said property, and hereby authorize and empower the said Hartford Fire Insurance Company to sue, compromise, or settle in my name or otherwise to the extent of the money paid as’ aforesaid; and it is hereby fully substituted in my stead and subrogated to all my rights in the premises. It being expressly stipulated that any action taken by said company shall be without cost or charge to me.” The defendant filed a demurrer to the petition, and upon a hearing thereof the justice of the peace passed the following order: “It is considered, ordered, and adjudged that the demurrer be and is hereby sustained, and the petition in said case as amended is hereby dismissed at plaintiffs cost.” The Hartford Fire Insurance Company applied for a writ of certiorari, and when the petition was presented to the judge of the Flynt circuit, Hon. V. E. H. Searcy Jr., he entered on'the petition the following order: " It appearing affirmatively from the petition and exhibits filed in the justice court, and to which a demurrer was there interposed, that the property alleged to have been destroyed by fire was insured against loss or damage from fire while contained in a certain concrete warehouse of the Williamson Gin Company, and, further, that at the time of its destruction by fire it was not contained in said warehouse, but was on a platform formerly owned by the gin company and built and being adjacent to and along side the tracks of the defendant, the director-general of railways, it follows therefore that the justice of the peace presiding in the court below properly sustained the general demurrer. Wherefore sanction of the within petition for the writ of certiorari is withheld and refused.”

The judge properly refused to sanction the certiorari.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.