Mobile Fire Department Insurance v. Coleman & Collat , 58 Ga. 251 ( 1877 )

Bleckley, Judge.

1. The insured had an insurable interest. That is not disputed. They owned the building for a longer period than the insurance had to run, and were under covenant with their lessor to rebuild, in ease of its destruction. For all purposes of honesty and good faith, as between themselves and the insurance company, they were owner’s. Their application, therefore, was true as far as it ■ went. It did not represent what their estate in the building was; nor did the terms of the contract require them to make that disclosure in the application, or elsewhere m writing. If they made it orally, they did all that they were required or expected to do. The insertion of the fact in the policy was the business of the agent. It was not incumbent upon them to supervise the execution of his work. lie was not their servant, but the servant of the company. What he knew, the company knew, notice to him being notice to it— Code, §2200. Because he omitted to create written evidence that they made known the true character of their estate in the premises, shall other evidence be forever excluded ? Shall the fact never be proved, because the kind of evidence which the company intended their agent to furnish as a memorial of it, was not furnished, in consequence of his neglect ? Can the company thus take control of the subject of evidence, and have rules applied to its transactions that do not apply to the transactions of other people? Generally, what takes place in parol may be proved by parol. Here was a parol communication, made by the insured to the agent of the insurer. The law did not require it to be made in writing, nor did the contract between the parties so require. When the question arises in court whether it was made or not, why may not the parol act of making it be proved by parol evidence? We think it may be done, and so rule—40 Ga., 135; 41 Ib., 660. The agent was not merely empowered to receive applications, but to make contracts. The company he represented was not a corporation of this state. It was present here by him, and his acts and omissions were its acts and omissions. Bepresentations made to him in the regular transaction of business, were made to it.

2. So much of this case as turned upon dealing with the subject of materiality, whether of covenant or representation, we think is ruled by 53 Ga., 537. The Code governs the contract, and the construction of the Code is settled, to the effect that what is wholly immaterial to the risk, is so utterly immaterial that the yea or nay of it will not render the policy void. If this be the true meaning of the Code, even an express stipulation by the parties that the validity of the policy shall depend on immaterial as well as material matters, is, at bottom, an attempt to repeal the law. Such a stipulation is itself immaterial, in the sense of being idle and nugatory. The Code, instead of relegating to the parties the subject of materiality, holds possession of it for rational and honest adjudication by the tribunals of the country. Whoever makes a contract of insurance in this state, must submit to have its force and effect governed by the statutory provisions applicable to that class of contracts. There is a public policy involved in standing by substance. Insurance is business, and not elaborate and expensive trifling. Of course, what is in any degree material should be allowed its due effect; but the absolutely immaterial should count for nothing.

3. That the cost of building is not necessarily the value of a structure, must be obvious.. 20 Ga., 359, 361, 368.

4. The charge of the court may not have been accurate in every respect, but we think its positions were sound, in the main, and that, under the evidence and the law applicable thereto, the jury were well warranted in the verdict which they rendered.

Judgment affirmed.