Summary
In Peeples v. Western Fire Ins. Co., 96 Ga. App. 39(2) (99 S.E.2d 349) it was held: "An agreement to have an appraisal made by arbiters will toll the period of limitation stated in the policy, and the period of limitation will not run while such agreement is pending."
Summary of this case from Western Fire Insurance Co. v. PeeplesOpinion
36735.
DECIDED JUNE 11, 1957.
Action on fire policy. Before Judge Little. Brunswick City Court. February 25, 1957.
W. A. Wraggs, for plaintiff in error.
Chas. L. Gowen, Chris B. Conyers, contra.
1. Where a fire-insurance policy stipulates the period of time within which an action must be commenced after the occurrence of a loss, an action brought after this period is barred and should be dismissed on general demurrer.
2. An agreement to have an appraisal made by arbiters will toll the period of limitation stated in the policy, and the period of limitation will not run while such agreement is pending.
3. A petition which fails to allege the proper measure of damages is subject to special demurrer, but not to a general demurrer.
DECIDED JUNE 11, 1957.
G. E. Peeples filed an action against the Western Fire Insurance Company based on a fire-insurance policy. The petition as amended alleged in substance: that for and in consideration of a certain premium the defendant, through its agent, George M. Stacey of Camden County, Georgia, wrote a fire-insurance policy on a residence belonging to G. E. Peeples, the plaintiff, in the amount of $2,500, being number 1126, under which according to its terms in the event of a total loss to the residence by fire, the plaintiff would be due from the defendant the sum of $2,500; that on May 24, 1955, the residence caught fire and burned to the ground, being a complete loss to the plaintiff; that on the following day, May 25, 1955, the plaintiff and the agent of the defendant, George M. Stacey, filled out a proof of loss and claim and mailed it to the defendant through the regular channels of the U.S. mail; that within a short time thereafter, the defendant's agent and employee came to the place where the residence burned, for the purpose of adjusting or settling the claim which arose under the policy written by the defendant, however, the defendant's agent and the plaintiff could not agree or settle on the terms which the defendant wished to settle the claim; that several days passed and the same agent and employee of the defendant made another visit to the residence and place of business of the plaintiff, offering the plaintiff the sum of $1,500 if plaintiff would settle the claim against the defendant arising under the policy of insurance; that the plaintiff refused this offer and the agent, an employee of the defendant, advised the plaintiff that if he did not accept the aforesaid amount, the defendant would not pay anything on this insurance policy written by the defendant covering the residence of the plaintiff; that the plaintiff and the agent of the defendant continued to discuss settling the claim and finally reached an oral agreement, whereby an appraisal would be made, one appraiser to be appointed by the plaintiff and one appraiser to be appointed by the agent and the third appraiser to be appointed by the appraisers selected by the plaintiff and the defendant's agent; the defendant's agent left the plaintiff with the understanding that as soon as he (defendant's agent) had selected an appraiser, he in turn would notify the plaintiff, whereupon the plaintiff would in turn select his appraiser and notify him (defendant's agent) of his choice, at which time the appraisers would meet for the purpose of choosing the third appraiser, and the three appraisers would determine the value of the residence belonging to the plaintiff and covered by the policy; that the defendant's agent and employee has never notified the plaintiff as to whom he has appointed or whether he has appointed an appraiser or set any time to meet with the plaintiff's appraiser for the purpose of setting a value on the residence; that the plaintiff has made several attempts to collect the amount due him by the defendant, that said amount is due, past due and unpaid, that the defendant has refused to pay the $2,500 to plaintiff or any part thereof; although several demands have been made on the defendant for payment; that the plaintiff after making these demands on which the defendant denied liability and finally would not even negotiate, the plaintiff shows that the defendant has acted in bad faith, therefore, the plaintiff is entitled to collect 25% of $2,500, plus interest from May 24, 1955, and a reasonable attorney's fee of $1,000 as provided by Code § 56-706.
The insurance policy upon which the suit is based was attached to and made a part of the petition. One provision of the policy read: "No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss."
The defendant filed general and special demurrers. The general demurrer read as follows: "The said petition does not set forth any cause of action against this defendant upon which the relief prayed may be granted."
The judge sustained the general demurrer and the plaintiff excepts to that ruling.
1. "Where it is stipulated in a policy of fire insurance that no action thereon shall be sustainable against the insurance company unless commenced within twelve months next after the occurrence of the loss, an action brought after the lapse of that period is barred." Woodall v. Hartford Fire Ins. Co., 33 Ga. App. 694 ( 128 S.E. 69). Such a petition should be dismissed on general demurrer and it is not necessary for the defendant to expressly set up a reliance on the statute of limitations. Woodall v. Hartford Fire Ins. Co., supra.
2. The petition alleged that the plaintiff and the defendant's agent made an oral agreement that an appraisal would be made, one appraiser to be appointed by each party and a third to be appointed by the appraisers selected by the parties. The petition further alleged that the defendant's agent agreed to appoint an appraiser and then notify the plaintiff who would in turn appoint an appraiser; that the defendant's agent never informed the defendant whether he had appointed an appraiser nor informed him of any time to meet with the plaintiff's appraiser.
The agreement to have an appraisal made operated to toll the period of limitations stipulated in the contract. Therefore, the period of limitations did not run during the period the agreement for an appraisal was pending. Insurance Co. of North America v. Folds, 42 Ga. App. 306 ( 155 S.E. 782); Insurance Co. of North America v. Folds, 35 Ga. App. 720, 721 (3) ( 135 S.E. 107); National Union Fire Ins. Co. v. Ozburn, 57 Ga. App. 90 ( 194 S.E. 756); Globe Rutgers Fire Ins. Co. v. Jewell-Loudermilk Co., 36 Ga. App. 538 (1) ( 137 S.E. 286).
The petition does not disclose the length of time the agreement was pending; therefore, it does not show on its face that the suit was filed after the time specified in the contract and a general demurrer will not lie.
3. The petition alleged that the defendant issued a policy of insurance to the plaintiff the face value of which was $2,500, that the property covered by the policy was totally destroyed, and prayed recovery in the amount of the face value of the policy. The petition alleged that the property was covered by the policy and that it was destroyed showing that the plaintiff was entitled to a recovery in some amount.
Conceding that the petition claimed recovery of the wrong amount under the facts pleaded, that is, sought recovery under the wrong measure of damages, the defect simply opened the petition to special demurrer. A general demurrer does not reach a failure to allege the proper measure of damages. Daniell v. McGuire, 87 Ga. App. 491 ( 74 S.E.2d 378); Hoffman v. Louis L. Battey Post, etc., American Legion, 74 Ga. App. 403 (5) ( 39 S.E.2d 889); Zittrour v. Zittrour, 43 Ga. App. 262 ( 158 S.E. 437); Murphy v. Holman, 179 Ga. 329 (3) ( 176 S.E. 5).
4. There were no final rulings made as to the special demurrers so as to present a question for determination by this court.
Judgment reversed. Felton, C. J., and Nichols, J., concur.