Liverpool & London & Globe Insurance v. Stuart

I think the judgment of the trial court should be reversed, under the facts and the law applicable to this case. This was so held by the Supreme Court in 191 Ga. 745 (supra), in answer to a certified question from this court, and it was said that "a breach of this provision as to part of the personal property insured avoided the whole policy, and there could be no recovery for the destruction of the other personal property as to which the insured was sole and unconditional owner." The policy provided: "This entire policy shall be void, unless otherwise provided by agreement in writing added hereto, if the interest of the insured be other than unconditional and sole ownership." There was an outstanding bill of sale to a part of the property insured with a balance of $58 unpaid at the time of the fire.

After the above-mentioned answer of the Supreme Court this court certified to it the following question: "Does the answer of the Supreme Court to the question propounded by this court in this case, Liverpool London Globe Insurance Company v. Stuart et al. (No. 13474), preclude this court from passing upon the question as to whether an amount due under a retention-of-title contract on a part of the property insured at the time the policy was issued was of sufficient materiality to void the policy?" The Supreme Court in its answer to this last question merely holds that its former decision does not preclude this court from passing upon the question as to whether an amount due under a retention-of-title *Page 202 contract on a part of the property insured at the time the policy was issued was of sufficient materiality to void the policy. See s. c. 193 Ga. 437 (supra). The contract being entire and not divisible, the bill of sale would render it void, unless the amount of $58 is too small and insignificant in comparison with the total amount of the insurance for the law to notice it. $58 is a substantial amount and in my opinion would not, under the facts of this case, come within the doctrine of de minimis non curat lex. The parties contracted in respect to the interest of the insured being unconditional and sole ownership, and if it be true that at the time of the fire there was an outstanding bill of sale to a part of the property insured with a balance of $58 unpaid, I do not think that it can be said as a matter of law that the $58 was too small and insignificant an amount to be noticed by a court of law. Therefore, I think that the trial court erred in sustaining the demurrer to that portion of the defendant's answer which set up as a defense that the policy was void by reason of the bill of sale to part of the insured property on which there was an unpaid balance of $58 at the time of the fire, and erred in overruling the motion for new trial.

I dissent from divisions 1 and 12 of the opinion and the rulings therein, and from the rulings in headnotes 1 and 12. I concur in the rulings in divisions 2 to 11, inclusive, of the opinion and the headnotes corresponding thereto.