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Action on insurance policy. Gilmer Superior Court. Before Judge Pope.
EVANS, Judge.
Where, on motion for summary judgment, the lower court did not have the completed policies of insurance in the record for examination, and there being no admission as to the entire contents thereof, no ruling could be made as to the binding effects of the policies on the parties. The lower court did not err in denying summary judgment.
This is a companion case to Boston Insurance Co. v. Barnes, 120 Ga. App. 585. It involves a suit by the insured against an insurance company on policies covering loss by fire. The suit was filed after the insured dwelling had burned. The insurance company denied coverage under its policy and refused to pay. Only the face of the policy was attached to plaintiff's petition as an exhibit. The defendant filed an answer, denying liability, and alleged that the policy contained the following clause:
"Unless otherwise provided in writing added hereto, this company shall not be liable for loss occurring: (a) While the hazard is increased by any means within the control or knowledge of the insured; or (b) While a described building, whether intended for occupancy by owner or tenant is vacant or unoccupied beyond a period of sixty (60) consecutive days."
The defendant contends there was a lack of coverage under said policy of insurance because of vacancy of the insured's property. It contends that the property remained vacant in excess of the 60 days allowed by the policy, and until and including the date of the fire. Not having the completed policies of insurance in the record, the depositions showing there were two, one by transfer and a renewal thereafter, and there being no admission or other proof establishing the entire contents thereof, no ruling can be made as to the binding effect of the alleged "no vacancy" clause as contended for by the defendant.
In considering the motion for summary judgment in this case, attention is called to the depositions of the insurance company's agent (the owner of the insurance agency who issued the policies in this case) which show that said agent kept the policies of insurance in his possession at all times, and that they were never placed in the possession of the insured (plaintiff) ; that said agent knew the building was vacant at the time the policy was written, and knew that said building would remain vacant until a doctor could be obtained for the community, who would occupy said building as a tenant and knew that for this purpose it was being remodeled. The agent and the plaintiff were both seeking a doctor for the benefit of the community; and said agent knew that the property remained vacant and continued vacant during the period in which the original policy was in effect and until same was rewritten; and stated that it was an oversight on his part that a vacancy permit was not obtained from the insurance company and attached to the policy. Plaintiff deposed that he never knew a vacancy permit was necessary; that he never had the policies in his possession; that he followed his usual practice of keeping all his insurance with this authorized agent; that he did not even know in which company the agent wrote the policy; that he never saw the policy; and that he was assured at all times by said agent that his property was covered under the policies aforesaid.
After a hearing on the defendant's motion for summary judgment the same was denied by the lower court, and the appeal is from the judgment denying the motion, the lower court certifying same for an immediate review. The enumeration of error is to the effect that the court erred in denying defendant's motion for summary judgment.
Apparently counsel for the defendant assumed that the entire policies of insurance were attached to the petition, when in fact, only the face of the renewal policy is attached as an exhibit. Defendant sought to pierce the allegations of the petition on summary judgment by having the court consider the pleadings, the exhibits, the answer and depositions taken, all of which it contends would demand a judgment in its favor. A casual reading of the depositions suggests that the insurance policies were considered, but without them in the record we cannot assume the lower court ever saw them. Proof or admission as to the contracts of insurance and their contents is absolutely necessary as to a question of liability or non-liability thereon. Without the contents, we have no way to determine whether or not the lower court erred in denying summary judgment. Defendant seeks to establish certain facts by the contents of its answer and a statement of contentions, but these are not admitted by the plaintiff. Accordingly, we must affirm the lower court, for we have no way of ascertaining the contents of the policies of insurance.
On motion for summary judgment the trial court may have had a stipulation of facts as to the policy and may have had before it the policy of insurance as claimed by the movant for rehearing; but in the record we have before us the policy cannot be located nor can any such stipulation as to its contents be found in the record. While we realize that under Code And. 56-3201 (Ga. L. 1960, pp. 289, 741) the standard form of fire insurance policy contained therein probably contains all the information relative to this policy, it is our opinion that this court should not attempt to add to or subtract from the record in order to ascertain what occurred in the trial court, but that we should take verbatim the information contained in the record. It may be that in this instance the clerk of the trial court has improperly prepared the record--which is voluminous--but in its present form we do not find the materials to which the motion for rehearing refers as being in the record. Nor do we construe the case of Darnell v. Fireman's Fund Ins. Co., 115 Ga. App. 367 (154 SE2d 741) to authorize this court to take judicial notice of the contents of the alleged insurance policies in this suit.
Further, whether the insurance policy be shown in the record or not it is not controlling, as this case is governed by the rulings made in the companion case of Boston Insurance Co. v. Barnes, 120 Ga. App. 585.
Herman J. Spence, Bobby C. Milam, for appellee.
McCamy, Minor Phillips & Tuggle, Carlton McCamy, for appellant.
Friday May 22 18:08 EDT

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