Nichols v. Pearl Assurance Company Limited

Court of Appeals of Georgia

Nichols v. Pearl Assurance Company Limited

31 S.E.2d 127, 71 Ga. App. 378, 1944 Ga. App. LEXIS 375

CourtCourt of Appeals of Georgia

DecidedJune 14, 1944

Docket30460.

StatusPublished

Cited by6 cases

This text of 31 S.E.2d 127 (Nichols v. Pearl Assurance Company Limited) 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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Nichols v. Pearl Assurance Company Limited, 31 S.E.2d 127, 71 Ga. App. 378, 1944 Ga. App. LEXIS 375 (Ga. Ct. App. 1944).

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Opinions

Parker, J.

1. A requirement in a policy of fire insurance, that the insured shall submit to an examination under oath touching the matters relating to the risk assumed by the company and the destruction of the property insured, and that he shall subscribe to the same, is binding and valid; and a refusal to comply with this condition will preclude the insured from recovering upon the policy, where it provides that no suit can be maintained until after a compliance with such conditions. Firemen’s Fund Ins. Co. v. Sims, 115 Ga. 939 (42 S. E. 269).

2. Where the plaintiff assigns as a reason for his not subscribing to the evidence given by him on an examination under oath his contention that the transcript was incorrect, such a reason, if true, is a justification. North British &c. Ins. Co. v. Parnell, 53 Ga. App. 178, 190 (4) (185 S. E. 122). And where the evidence is conflicting as to whether the insured attributed the errors to his giving incorrect answers or to mistakes made by the reporter in taking down and writing up the testimony, an issue of fact is made for determination by the jury. The same principles apply to the insured’s claim that he walked out of the examination proceeding and refused to testify further because questions altogether foreign to the issues were propounded to him against his continued objection. Therefore, the court erred in finding as a matter of law that the insured had failed to comply with the said policy stipulations and in directing the verdict against the plaintiff.

3. Since the court erred in not submitting to the jury the issue of fact regarding the truth of the insured’s attempted compliance with the *379 policy provisions, it was error to direct the jury to find against the plaintiff on the defendant’s counterclaim, which was based upon its alleged subrogation to the rights and claims held by the insured’s lien-holders whose claims were paid by the insurer under a denial of liability, as provided by “New York standard mortgage-clause” indorsements upon the policy. Judgment reversed.

Decided June 14, 1944. Rehearing denied July 14, 1944. Bond Almand, George & John L. Westmoreland, for plaintiff. Smith, Smith & Bloodworth, Groom, Partridge, for defendant. Sutton, P. J., concurs.

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Parker, J.

1. A requirement in a policy of fire insurance, that the insured shall submit to an examination under oath touching the matters relating to the risk assumed by the company and the destruction of the property insured, and that he shall subscribe to the same, is binding and valid; and a refusal to comply with this condition will preclude the insured from recovering upon the policy, where it provides that no suit can be maintained until after a compliance with such conditions. Firemen’s Fund Ins. Co. v. Sims, 115 Ga. 939 (42 S. E. 269).

2. Where the plaintiff assigns as a reason for his not subscribing to the evidence given by him on an examination under oath his contention that the transcript was incorrect, such a reason, if true, is a justification. North British &c. Ins. Co. v. Parnell, 53 Ga. App. 178, 190 (4) (185 S. E. 122). And where the evidence is conflicting as to whether the insured attributed the errors to his giving incorrect answers or to mistakes made by the reporter in taking down and writing up the testimony, an issue of fact is made for determination by the jury. The same principles apply to the insured’s claim that he walked out of the examination proceeding and refused to testify further because questions altogether foreign to the issues were propounded to him against his continued objection. Therefore, the court erred in finding as a matter of law that the insured had failed to comply with the said policy stipulations and in directing the verdict against the plaintiff.

3. Since the court erred in not submitting to the jury the issue of fact regarding the truth of the insured’s attempted compliance with the *379 policy provisions, it was error to direct the jury to find against the plaintiff on the defendant’s counterclaim, which was based upon its alleged subrogation to the rights and claims held by the insured’s lien-holders whose claims were paid by the insurer under a denial of liability, as provided by “New York standard mortgage-clause” indorsements upon the policy. Judgment reversed.

Decided June 14, 1944. Rehearing denied July 14, 1944. Bond Almand, George & John L. Westmoreland, for plaintiff. Smith, Smith & Bloodworth, Groom, Partridge, for defendant. Sutton, P. J., concurs.

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31 S.E.2d 127, 71 Ga. App. 378, 1944 Ga. App. LEXIS 375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nichols-v-pearl-assurance-company-limited-gactapp-1944.

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