Pooser v. Norwich Union Fire Insurance Society Ltd.

ON REHEARING.

Counsel for the defendant, in a motion for rehearing, assert that this court has overlooked what counsel claim is an authoritative ruling of the Supreme Court of this State, in Sewell v. Holland, 61 Ga. 608, that the consideration expressed in a dee'd can not be inquired into except in a proceeding between the parties themselves. As we understand and construe the ruling in that case, it is not authority for the proposition thus laid down by counsel. That decision held that where a tenant in common had conveyed his interest in the property to another person, the remaining co-' tenant could not resist a partition of the land at the instance of the vendee in the deed, on the ground that the deed was in part a corrupt agreement between the vendor and the vendee to compound a felony. In American Insurance Co. v. Bagley, 6 Ga. App. 736 (65 S. E. 787), which was a suit to recover for a loss under a fire-insurance policy, in which it was claimed that the insured was not the sole owner of the property because he held under a deed of bargain and sale from the wife, which was void as not having been approved by the superior court, it was held, notwithstanding the deed recited a money consideration, that it could be shown that the deed was a deed of gift from the wife to the husband, and was therefore valid because such a deed did not require the approval of the superior court. In that case the wife was not a party. Anderson v. Continental Insurance Co., 112 Ga. 532 (37 S. E. 766), in which it was held that it was not competent to show by parol that an absolute deed passing title, in the absence of fraud, was merely a power of attorney and was executed for a purpose other than passing title, and that the consideration upon which it was executed was different from that expressed, is not authority against the proposition that, notwithstanding the recital of a money consideration in a deed, it may be shown to be a voluntary deed *976of gift, as was held in American Insurance Co. v. Bagley, supra. See Home Insurance Company of New York v. Johnson, 181 Ga. (181 S. E. —),

It is also insisted by counsel for the defendant that the decision of this court in the case at bar is in conflict with the ruling in Cannon v. Phœnix Insurance Co., 110 Ga. 563 (35 S. E. 775, 78 Am. St. R. 124), where it was held as follows: "There was, on the trial of an action against an insurance company, no error in refusing to allow the plaintiff to introduce in evidence a proof of loss which showed on its face that the company was not liable, nor in refusing to allow the plaintiff to prove by parol testimony facts a recital of which in the proof of loss at the time of its presentation to the company would have made the proof legally sufficient to support a claim of loss.” This court, in the opinion as originally written, attempted to distinguish that case. In that case the proof of loss showed damage only from smoke and soot escaping from a defective stovepipe which, as the court held, was not covered by the insurance " against all direct loss or damage by fire,” as provided in the policy. It was there held that the proof of loss showed on its face that the company was not liable. It was also held that parol proof tending to show that some of the woodwork in the building had been actually destroyed by fire, the loss of which might have been recovered under the terms of the policy, was properly excluded from evidence. , In that case the plaintiff’s proof of loss failed to show any damage recoverable under the policy, and the offered evidence tended to show a damage, which, although recoverable under the policy, was not recited or claimed in the proof of loss. That case is clearly distinguishable from the one now before this court. In the present case the plaintiff, in her proof of loss, alleged and claimed a damage arising under the terms of the policy, and by a misstatement of fact showed that the plaintiff was not the sole owner of the property. To permit the plaintiff to show by parol information communicated to the insurance company, at the company’s request, after the filing of proof of loss, the true facts with reference to the deed referred to in the proof of loss as one conveying ownership of the property out of the plaintiff, is an entirely different proposition from permitting an insured to show by parol, on the trial, a damage from loss by fire which was not included or even referred to in the proof of *977loss. In Goldman v. Ætna Insurance Co., 30 Ga. App. 715 (119 S. E. 338), while the court stated, on the authority of Cannon v. Phœnix Insurance Co., supra, that a waiver will not be imputed “where the required proof of loss as rendered to the insurance company is not merely deficient or defective, as failing to fully comply with the duties and obligations of the assured with reference to making and forwarding the same, but where the proof as rendered affirmatively shows on its face that the company is not liable under the terms of risk assumed,” it was held that the proof of loss did not indicate the failure of the insured to comply with the condition in the policy respecting the taking of an inventory of the property covered by the policy, and that it was error for the court to dismiss the petition on the ground that the proof of loss showed that such inventory had not been taken, and that consequently no cause of action was set forth. In 26 C. J. 381, it is stated: “By the weight of authority, however, unless the statements are fraudulently made or the facts are such as to estop him from disputing them, insured is not conclusively bound by statements in the notice or proofs.” To the same effect see 7 Cooley’s Briefs on Insurance (2d ed.), 5868: “The weight of authority undoubtedly supports the principle that, if the insured has not been misled by the mistake to his detriment, the insured will not be estopped to show the truth, and that the erroneous statement was made by mistake.”

Counsel for the defendant insist that it appears conclusively from the allegations of the petition that the deed was one in escrow. Whether or not the plaintiff used the word “escrow” in referring to the character of the deed is -immaterial. She is not, as a matter of law, bound by this allegation, where she elsewhere in the petition as amended alleged facts which show the true character of the instrument and that it was not a deed in escrow. In McClure Ten-Cent Co. v. Humphries, 29 Ga. App. 524 (116 S. E. 54), it was held that “where general allegations setting up agency are followed by specific detailed averments, the former ordinarily will yield to the latter.” See cases there cited; 49 C. J. 121.

We have, upon rehearing, added headnotes 2, 3, and 4. With these additional headnotes and this addition to the opinion, we adhere to the original opinion and the headnotes there attached, and to the original judgment reversing the judgment sustaining the demurrer to the petition as amended.