Opinion
37310.
DECIDED SEPTEMBER 25, 1958. REHEARING DENIED OCTOBER 7, 1958.
Action on insurance policy. Laurens Superior Court. Before Judge Stephens. June 6, 1958.
Hamilton Napier, Larsen Larsen, Bloch, Hall, Groover Hawkins, for plaintiff in error.
Hal M. Smith, Nelson Nelson, Jones, Sparks, Benton Cork, contra.
The court properly overruled the demurrers to the petition.
DECIDED SEPTEMBER 25, 1958 — REHEARING DENIED OCTOBER 7, 1958.
The First National Bank Trust Company of Macon, Georgia, filed a petition against Lumbermen's Underwriting Alliance. The petition, filed March 25, 1958, will be set out substantially hereinafter. On April 25, 1958, the defendant demurred to the petition and filed an answer. This answer was amended on May 9, 1958. The plaintiff amended the petition on May 12, 1958, in response to the demurrers. The defendant then renewed its demurrers on May 23, 1958. On June 6, 1958, the plaintiff filed a second amendment. The Judge of the Superior Court of Laurens County overruled all the demurrers on June 6, 1958. It is on this order overruling the demurrers that the case is here for review. The petition reads: "The petition of the First National Bank Trust Company in Macon, a national banking association with its principal office in Macon, Bibb County, Georgia, against Lumbermen's Underwriting Alliance, respectfully shows: 1. Lumbermen's Underwriting Alliance, hereinafter referred to as defendant, is an unincorporated reciprocal insurance exchange, organized under and existing by virtue of the laws of the State of Missouri, composed of numerous individuals, firms and corporations residing in various states of the United States, and some of them residing in the State of Georgia. Defendant is engaged in the business in the State of Georgia of issuing policies of fire insurance, and was so engaged on all of the dates hereinafter mentioned.
"2. On July 29, 1957, defendant, through its attorney in fact, U.S. Epperson Underwriting Company, issued to W. L. Jessup, Jr., d/b/a Brooks-Jessup Lumber Company, its policy of fire insurance number 41911 in the total amount of $66,500 covering certain specific buildings and machinery designated therein, which said policy was endorsed on August 19, 1957, to increase the amount thereof to $68,500.
"3. There was attached to and made a part of the aforesaid policy of insurance a mortgagee clause endorsement making the loss or damage, if any, under said policy, payable to plaintiff, First National Bank Trust Company in Macon, as interest may appear, subject to the provisions of the mortgagee clause appearing on the back thereof.
"4. A copy of the material parts of the aforesaid policy of insurance, including the schedule of buildings and machinery designated therein, and including the material parts of the aforesaid mortgagee clause endorsement, is attached hereto as Exhibit A, and by reference made a part hereof.
"5. At the time said policy of insurance was issued, and at all times thereafter, plaintiff was and still is the holder of an indebtedness secured by the buildings and machinery scheduled in said policy of insurance, and insured thereunder, in an amount exceeding the amount of said insurance, and exceeding the amount of the loss under said policy hereinafter alleged.
"6. On or about September 4, 1957, a part of the property described in said policy of insurance was destroyed by fire, and thereafter, in due course, the insured, in accordance with the terms of said policy, gave timely notice of said loss, and on October 8, 1957, filed with the company sworn proofs of loss showing the amount of loss claimed to be due under said policy to be the sum of $16,100.
"7. Sixty days having expired after the filing of said proofs of loss, and payment thereof not having been made, the insured made formal demand upon the defendant for payment of said loss, and thereafter on the 12th day of December, 1957, plaintiff, as mortgagee as aforesaid, made demand for payment to it of the full amount of the loss under said policy.
"8. Defendant has failed for more than sixty days after demand to make payment to plaintiff of the loss under said policy, and such failure is in bad faith within the provisions of Georgia Code Section 56-706.
"9. Plaintiff has complied with all of the terms and conditions of said policy of insurance pertaining to defendant's liability thereunder to plaintiff, and defendant is liable and indebted to plaintiff under said policy in the principal amount of $16,100, plus an amount equal to interest thereon at the rate of 7% from December 12, 1957, and by reason of defendant's failure in bad faith to pay the amount of said loss within sixty days after demand defendant is further liable and indebted to plaintiff in the amount of twenty-five percent of said principal amount as damages, plus reasonable attorneys' fees in the amount of $3,000 for which amounts plaintiff prays the judgment of this court.
"10. Pursuant to statute, and applicable regulations, defendant has designated a process agent upon whom service of the petition and process in this case may be made, to wit, Mr. Smythe Gambrell, who resides in and may be served in Fulton County, Georgia.
"11. At the time of the issuance of the aforesaid policy, and at the time of the loss thereunder, defendant had an agent in Laurens County, Georgia, and the Superior Court of Laurens County has jurisdiction of this complaint.
"12. The aforesaid sworn proof of loss filed by the insured, and the demand in writing made by the insured more than sixty days after the filing of said proof of loss, are both in the possession of the defendant, and the defendant is notified to have and produce the same in the Superior Court of Laurens County upon the trial of this case to be used as evidence for the plaintiff."
The defendant demurred, through its attorney in fact, U.S. Epperson Underwriting Company, filing general and special demurrers as follows: "1. The defendant demurs generally to the petition in that the petition shows that this court has no jurisdiction of this action.
"2. Defendant demurs generally to the petition in that the petition sets out no cause of action against this defendant.
"3. Defendant demurs generally to said petition in that the petition shows that this defendant is not a legal entity.
"4. Defendant demurs specially to the petition in that the petition shows that the defendant is a legal nullity composed of a voluntary association of subscribers who are individuals, partnerships and corporations, some of whom are citizens of the State of Georgia; that said subscribers are the real parties at interest; and that said subscribers who are citizens of Georgia are necessary and indispensable parties to this action.
"5. Defendant demurs specially to the petition in that the petition shows that the defendant is a legal nullity, being merely a nomen collectivum for a group of subscribers contracting to act as insurers each of the others only by and through an attorney in fact, U.S. Epperson Underwriting Company, which company is a real party at interest and is a necessary and indispensable party to this action.
"6. Defendant demurs specially to said petition in that the petition shows that W. L. Jessup, Jr., of Eastman, Dodge County, Georgia, is the real party at interest and is a necessary and indispensable party to this action.
"7. Defendant demurs specially to paragraph 7 of the petition for indefiniteness and uncertainty and calls upon petitioner to allege in what manner any demand was made by petitioner of payment of this claim, where such demand was made, by whom and to whom such demand was made.
"8. Defendant demurs specially to paragraph 8 of the petition as pleaded in that the same is highly prejudicial, immaterial, irrelevant and a conclusion of the petitioner unsupported by any allegation of fact in said paragraph or elsewhere in the petition. Defendant also demurs specially to paragraph 8 for uncertainty and calls upon petitioner to quote Georgia Code Section 56-706 as said Code section has no application to the issues in this action.
"9. Defendant demurs specially to paragraph 9 of the petition for indefiniteness and uncertainty and calls upon the petitioner to itemize the claim of $16,100 showing the buildings and machinery which it is claiming were destroyed by fire, petitioner's claimed value therefor in order that defendant can determine how and in what manner petitioner arrives at such loss figure. Defendant also demurs specially to all that portion of paragraph 9 following the numerals `1957' as being immaterial, irrelevant, highly prejudicial and a conclusion of the petitioner unsupported by any allegation of fact in said paragraph or elsewhere in the petition and defendant moves that such portion of this paragraph be stricken.
"Wherefore, for these and other causes of demurrer appearing in the petition and in exhibits attached, defendant demurs to said petition and requests the judgment of this court whether defendant shall be called upon to make any further or other answer to the petition; and prays to be dismissed with costs incurred charged to petitioner."
On the same day the defendant filed an answer as follows: "Now comes the defendant, Lumbermen's Underwriting Alliance, by and through its attorney in fact, U.S. Epperson Underwriting Company, and, specifically reserving its defense by reason of the lack of jurisdiction of this court, and without waiving any and all other defenses raised by defendant in its demurrer, and without waiving any other legal defense which it has to this action, files this its answer to the above-stated petition.
"1. The defendant admits paragraphs 1, 2, 3, 4, 5, 6, 10, 11 and 12 of the petition.
"2. Defendant denies paragraphs 7, 8 and 9 of the petition as pleaded.
"3. For further plea and answer defendant states that no separate demand has been made upon it for payment of this claim by the petitioner until the filing of this action.
"4. Said claim was presented by the assured, W. L. Jessup, Jr., in conjunction with his claim under policy #29122 covering stock materials and supplies and negotiations for settlement have been for the settlement of both claims jointly.
"5. On November 13, 1957, defendant offered said insured and this petitioner the sum of $150,000 in settlement of said claims which sum included the sum of $16,100 now being demanded by petitioner in this action, which offer was refused by said insured and the petitioner.
"6. Thereafter, on December 5, 1957, defendant wrote said insured with a copy to petitioner offering $133,000 in full settlement of the claim under said policy, which offer included the $16,100 demanded in this action, and this offer was not accepted.
"7. Defendant freely admits liability for the $16,100 demanded in this action and has been and is willing to pay the same to petitioner together with interest at 7% from December 12, 1957, although denying liability for such interest, which interest amounts to $425.76, making a total of $16,525.76 according to defendant's calculations in full settlement under this policy.
"8. Defendant denies any obligation to the insured, W. L. Jessup, Jr."
By amendment the defendant added the following paragraphs to the answer: "9. Defendant herewith tenders into court its draft in the sum of $16,569.50 representing the principal sum of $16,100 together with interest at 7% from December 12, 1957 to May 12, 1958, the same being the full amount claimed by the petitioner in this action for principal and interest on its claim under said policy.
"10. Defendant prior to filing its original answer in this matter offered on April 23, 1958, the sum of $16,525.76, the same being $16,100 principal and $425.76 interest from December 12, 1957, to April 28, 1958, the latter being the answer date, in settlement of petitioner's claim under said policy and said offer was refused by the petitioner by a letter dated April 28th and received by attorneys for this defendant subsequent to said answer date.
"11. Defendant asserts that no proof of claim has ever been filed by the petitioner under said policy.
"Wherefore, the defendant having fully answered said petition, prays permission of the court to be hence discharged with its reasonable costs."
The plaintiff's first amendment reads as follows: "1. On May 8, 1958, defendant served on plaintiff an amendment to defendant's answer, to which said amendment plaintiff has filed objections and has filed special demurrers.
"2. Subject thereto, and for answer to said amendment, plaintiff respectfully shows:
"3. Answering paragraph 1 of said amendment plaintiff alleges that it has not only demanded payment by defendant of the principal sum of $16,100 under the policy sued on, plus interest thereon, but on April 24, 1958, plaintiff, through its attorney, wrote Mr. Hamilton Napier, attorney for defendant, in response to defendant's conditional offer to pay the sum of $16,525.76, which included $425.76 interest, that it was entirely willing to receive and accept payment, `without prejudice to its claim for damages and attorneys' fees.'
"4. As alleged in the original petition in this case due and timely proof of loss in the amount of $16,100 was filed by the insured under the policy sued on, and under the terms of said policy the amount of said loss was payable to this plaintiff on or before December 12, 1957. On said date this plaintiff made demand for payment, but at no time thereafter until on or about April 23, 1958, more than four months later, did defendant make any offer to pay said loss, or show evidence of any disposition or willingness to pay the same, but on the contrary, without probable cause, repeatedly denied liability therefor.
"5. In the meantime defendant, by reason of its bad faith, had become liable to this plaintiff not only for the principal amount of said claim, and interest thereon, but for statutory damages and attorneys' fees, and this plaintiff had filed its suit in this court seeking to recover such damages and attorneys' fees in addition to the principal amount of said claim, plus interest.
"6. It is quite apparent, and plaintiff so alleges, that defendant has no valid defense under said policy which would justify its failure and refusal to make payment thereunder, and while defendant has denied liability under said policy no ground or reason of any substance whatsoever for such denial of liability, or for its failure or refusal to make payment, has ever been asserted, either orally or in writing.
"7. Notwithstanding defendant's expressions of willingness at this late date to pay the principal and interest of said claim, and notwithstanding defendant's clear liability therefor, even at this late date defendant shows no willingness and makes no offer to pay said liability except upon the condition that such payment be accepted in full settlement of plaintiff's valid claim for damages and attorneys' fees as set forth in its original petition.
"8. Plaintiff alleges that defendant's persistence in arbitrarily withholding from plaintiff, except upon the conditions stated above, the payment of its acknowledged liability to this plaintiff, is further evidence of defendant's bad faith.
"9. Defendant now proposes by its amendment referred to above to tender into court the aforesaid sum of $16,100 for which defendant was liable on or before December 12, 1958, and with respect to which it has no valid defense of any sort or character, together with interest thereon to May 12, 1958. If defendant is making a bona fide and unconditional tender of said amount defendant has already been advised by plaintiff that such payment will be received and accepted, but without prejudice to plaintiff's claim for damages and attorneys' fees. Instead of making such payment to plaintiff, defendant, for some mysterious reason, proposes to pay said amount into court, leaving plaintiff to guess and to speculate whether it can withdraw said sum without prejudice to its claim for damages and attorneys' fees, or whether by withdrawing same, if it should do so, plaintiff will thereby have been successfully coerced by defendant into an involuntary surrender and relinquishment of its claim for damages and attorneys' fees.
"10. Under the circumstances plaintiff now denies that said proposed tender into court is made in good faith, but is a continuation of the tactics which have been employed by defendant continuously since this cause of action arose to withhold from plaintiff, in bad faith, the sums to which plaintiff is entitled under said policy.
"Wherefore plaintiff prays that it have judgment against the defendant for the amounts originally sued for, including statutory damages and attorneys' fees.
Following that amendment the defendant renewed the demurrers as follows: "1. Defendant renews its general demurrers to the petition as amended.
"2. Defendant renews its special demurrers to the petition as amended.
"3. Defendant demurs specially and objects to allowance of plaintiff's amendment in that the amendment is not in proper form for consideration by the court; adds nothing to the original petition; strikes nothing from the original petition; substitutes nothing in the original petition; is not paragraphed in numerical sequence with the original petition.
"4. Defendant demurs specially to paragraph 1 of the amendment in that the same is superfluous and irrelevant in that the court record of this case speaks for itself.
"5. Defendant demurs specially to paragraph 2 of the amendment and all following paragraphs in that the same are in answer to the defendant's answer, are immaterial and irrelevant to this action, contain no pertinent allegations of fact, are conclusions of the pleader and are highly prejudicial to this defendant.
"Wherefore, defendant prays that said amendment be disallowed, and that its special and general demurrers be sustained."
The plaintiff then amended a second time as follows:
"Plaintiff amends its petition by adding to paragraph 7 thereof the following: The demand herein referred to was made in the Dinkler Plaza Hotel in Atlanta, Georgia, on Thursday, December 12, at a conference arranged by Mr. Hamilton Napier, defendant's attorney. Present at said conference representing plaintiff were Mr. Elmo Draughon, an officer of plaintiff bank, and C. Baxter Jones, plaintiff's attorney. Also present were W. L. Jessup, Jr., and his attorney Hal M. Smith. Present representing defendant were Hamilton Napier and John Abreo, the latter being defendant's adjuster. In the course of said conference plaintiff's attorney advised said Hamilton Napier and said John Abreo that plaintiff was a standard mortgage clause loss payee under the policy sued upon, that defendant's liability to plaintiff under said policy was independent of defendant's liability thereunder to said W. L. Jessup, Jr., that so far as plaintiff knew no defense had been asserted or contended for by defendant against its liability to plaintiff under its said standard mortgage clause endorsement, and that irrespective of any question of liability to said W. L. Jessup, Jr., under any other policy of insurance plaintiff was expecting and demanding immediate payment to it of the said sum of $16,100 under the policy sued on. Thomas H. Watkins, defendant's general counsel, was scheduled to be present at said conference but was delayed and did not arrive until after plaintiff's representatives had left."
"2. Thereafter, on January 3, 1958, U.S. Epperson Underwriting Company, as attorney in fact for defendant, filed its complaint in the U.S. District Court at Macon, Georgia, in which plaintiff prayed the judgment of the court upon final hearing that the policy sued upon in this court was void and that the plaintiff therein was not indebted to this defendant under said policy in any amount.
"3. In response thereto plaintiff filed its answer in said proceeding on January 24, 1958, in which plaintiff alleged that plaintiff had demanded payment under the policy sued on in this case, and that the failure to pay to this plaintiff the said sum of $16,100 was in bad faith. Said answer was served upon U.S. Epperson Underwriting Company, the attorney in fact for the defendant in this case, on or about the 24th day of January, 1958, more than 60 days before the filing of this suit.
"4. Irrespective of any demand by this plaintiff for the payment of the loss to plaintiff under the policy sued upon, defendant repeatedly denied liability to this defendant prior to the filing of this suit, and more than 60 days prior to the filing of this suit, and made no offer to pay this plaintiff the amount of plaintiff's loss under said policy, or any part thereof, thereby waiving any demand which plaintiff might otherwise have been required to make in order to entitle it to the recovery of damages and attorney's fees as prayed for.
"5. Plaintiff amends paragraph 6 of its petition by adding thereto the following: In said sworn proofs of loss the amount of loss claimed to be due under said policy was fully itemized, specifying in detail the property destroyed and the values thereof and the amount of loss claimed therefor."
The general demurrer contains three paragraphs which we shall take up separately. Paragraph 1 of the general demurrer goes to the venue. The record shows that at the time the loss occurred the defendant had an agent in Laurens County, Georgia, and that the defendant was such an insurance writer as could be sued on the insurance policy in the Superior Court of Laurens County in regard to the insurance policy which the defendant issued. Code § 56-601 reads: "Whenever any person shall have any claim or demand upon any insurance company having agencies or more than one place of doing business, such person may institute suit against the company in the county where the principal office of the company is located, or in any county where the company shall have an agent or place of doing business, or in any county where such agent or place of doing business was located at the time the cause of action accrued or the contract was made, out of which said cause of action arose. (Acts 1861, pp. 58, 59; 1862-3, p. 161; 1878-9, p. 54; 1902, p. 53.)" In Hagler v. Pacific Fire Ins. Co., 36 Ga. App. 530 ( 137 S.E. 293) this court held that when a petition is brought against an insurance company which petition shows that at the time of the issuance of the policy on which suit was brought, the defendant was represented by an agent in the county in which the suit was filed, jurisdiction lies in such county. Code § 56-231 reads as follows: "All laws regulating the business of insurance in this State by companies shall apply to individuals, associations, and corporations in like business. (Acts 1893, p. 81.)" (Italics ours.) It must be remembered that all statutes as to venue must be strictly construed. See Heyman v. Heyman, 19 Ga. App. 634 ( 92 S.E. 25) and Sugar Bro. v. Sackett, Davis Potter, 13 Ga. 462.
The defendant in his brief states as follows: "This defendant recognizes its liability under the laws of Georgia to comply with all of the laws of Georgia `regulating the business of insurance', has complied with such regulations and has obtained a license to do business in Georgia evidencing such compliance. However, defendant contends that Section 56-601, above quoted, is not a law `regulating the business of insurance' and thus is not applicable to this defendant which is not an insurance company, being a voluntary association of individuals, partnerships and corporations subscribing among themselves through an attorney in fact to insure each other."
We think it well at this point to quote in part the Standard Fire Policy which was issued by the defendant:
"Standard Fire Policy. Lumbermen's Underwriting Alliance.
"Fire and lightning . . . . . $66,550.00 3.371 $2,827.36 Extended coverage . . . . . -------- .495 $ 415.17 Windstorm and hail . . . . . $ -------- ----- $ ------- ------------------ . . . . . ----- $ ------- ------- Additional coverages (when endorsement attached) Total Premium $3,242.53 No insurance attached in connection with the above listed perils unless specific `premium' therefor is specified in the face of this policy or in endorsements attached hereto."In consideration of the provisions and stipulations herein or printed on the back hereof or added hereto and of the premium above specified (or specified in endorsement attached hereto) this company for the term of one year and 95 days from July 29, 1958, at noon (Standard time) to November 1, 1958 at noon (Standard time) at location of property involved to an amount not exceeding the amount above specified, does insure W. L. Jessup, Jr., d/b/a Brooks Jessup Lumber Company, Eastman, Georgia, and legal representatives, to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss, without allowance for any increased cost of repair or reconstruction by reason of any ordinance or law regulating construction or repair, and without compensation for loss resulting from interruption of business or manufacture, nor in any event for more than the interest of the insured against all direct loss by fire, lightning and by removal from premises endangered by the perils insured against in this policy except as hereinafter provided to the property described hereinafter while located or contained as described in this policy, or pro rata for five days at each proper place to which any of the property shall necessarily be removed for preservation from the perils insured against in this policy, but not elsewhere.
--------------------------------------------------------------------------- 1 2 3 4 Item Amt. Per Amt. Per Description and No. Fire Cent Other Cent location of property or Co-Insurance Peril Co-Insurance covered. Show Fire Applicable if Applicable construction, type of and Ext. Different roof and occupancy of Coverage, Than building(s) covered or or Fire containing the property other covered. If occupied as peril a dwelling state No. of families. --------------------------------------------------------------------------- "See Form Attached. Total insurance — See form attached — Item 1. $ ___________________; Item 2. $ ____________; Item 3. $ ______________; Item 4. $ ____________________ Valuation clause (Applicable only in the State of Florida and South Carolina) — See form attached — Item $ _____; Item $ ____; Subject to Form No(s) _____________________________________ herein. Mortgage clauses subject to the provisions of the mortgage clause attached hereto, loss, if any, shall be payable to: ________________________________ ___________________________________________________________________________ "Assignment of this policy shall not be valid except with the written consent of the company. "In witness whereof, the said attorney has executed these presents for the subscribers but this policy shall not be valid until countersigned. "U.S. Epperson Underwriting Company. Attorney in fact. l/s A. H. Thurman l/s E. M. Lynn Secretary President Dated August 14, 1957 l/s T. S. Den Agent" (Then follows an extended coverage which shows additional premiums, the total amount of the coverage being $68,500 on certain described property.)"All of the above described properties while situated on premises occupied by the insured on McRae Highway, (east side) approximately five miles south of Eastman, Georgia.
90% Co-insurance applies to item #24 only
80% Co-insurance applies to item #14 only
"Attached to and forming part of policy No. 41911.
"Balance of form remains unchanged.
of Lumbermen's Underwriting Alliance of Kansas City, Mo. Dated August 19, 1957."
There was an endorsement of this policy to the First National Bank Trust Company of Macon, as its interest might appear at the time of loss.
The act of 1958 (Ga. L. 1958, p. 623) provides that reciprocal insurers shall sue and be sued in the business name of the said insurer. The act of 1958 (Ga. L. 1958, p. 649, Sec. 12) provides that "Any reciprocal exchange transacting business in the State of Georgia may sue or be sued in the name or designation under which its contracts are authorized to be exchanged." That same act provides in Sec. 2 that contracts may be executed by an attorney in fact "provided that such attorney may be a corporation." It must be remembered that the policy was issued under date of October 22, 1956. The proof of loss was dated October ___ 1957. At the time the loss occurred the defendant had an agent in Laurens County. At the time the suit was ready for filing, the agent in Laurens County had left Laurens County and the suit was served upon Smythe Gambrell designated by the defendant as one to accept service. Also nonjoinder of parties, even if there are parties who should be joined, is not grounds for a general demurrer. See Hand v. Dexter, 41 Ga. 454. The jurisdiction was properly in Laurens County.
We come next to consider the second paragraph of the general demurrer to the petition to the effect that the petition sets out no cause of action against the defendant. We have set out the pleadings in detail and thoroughly agree with the trial court that the general demurrer should have been overruled, as was done. And as to paragraph 3 of the general demurrer in regard to the defendant not being a legal entity, the answer and amended answer as well as the demurrers have been in the name of the Lumbermen's Underwriting Alliance. Counsel for the defendant argues that individuals should have been sued rather than the defendant Lumbermen's Underwriting Alliance. Under the pleadings in this case it is clear to us that the Lumbermen's Underwriting Alliance is a legal entity, subject to sue and be sued through an agent.
The court properly overruled the general demurrer to the petition.
2. Paragraph 4 is a special demurrer which attempts to show that the defendant is a legal nullity composed of a voluntary association of subscribers who are individuals, partnerships and corporations, and that said subscribers are necessary and indispensable to this action. The Lumbermen's Underwriting Alliance was formed as an unincorporated reciprocal insurance exchange. As far back as 1939 the laws of Georgia recognized the formation of insurance exchanges for certain purposes. It seems to us inconsistent that a group of people should band together and do business of writing any type of insurance policy and then several years later claim themselves to be only individuals disconnected with each other except as individuals and that each or all must be sued. Counsel for the defendant cites a number of cases to the effect that if a suit is brought in a name which is neither that of a natural person, a corporation, nor a partnership, it is a mere nullity. This is a true principle of law so far as it goes but our law does provide, and it has been many times held, that in the case of a legal entity an agent may be served. There is no doubt that the Lumbermen's Underwriting Alliance is a company because the policy itself says: "Whenever the word company occurs herein, it means, and shall be taken and construed to mean Lumbermen's Underwriting Alliance [Italics ours]," and further, the policy reads: "In consideration of the provisions . . . this company for the term of three years . . . does insure W. L. Jessup, etc. . . [Italics ours]." The laws of 1958 do not have the remotest implication that the subscribers should be served, but on the other hand it is made completely clear that the only proper party either as plaintiff or defendant in any litigation is the reciprocal exchange. If it is possible (which we do not concede) that a combination of individuals can act as insurors and such individuals could conceivably be scattered throughout the country, and each individual must be sued as individuals, then such procedure is indeed an imposition on the general public. Presumably this legal entity qualified with the State Fire Insurance Commissioner before being allowed to sell fire insurance in the State of Georgia. The court properly overruled this special demurrer.
3. Paragraph 5 demurs specially to the petition in that the petition shows that the defendant is a legal nullity. Inasmuch as we have gone into detail in the division immediately hereinabove, showing that the defendant Lumbermen's Underwriting Alliance is a legal entity we think it unnecessary to go into detail defending the position that it is not a legal nullity. This special ground is not meritorious.
4. Paragraph 6 demurs specially to the petition in that it is alleged that W. L. Jessup, Jr., of Eastman, Dodge County, Georgia, is the real party at interest and is a necessary and indispensable party to this action. W. L. Jessup, Jr., was originally the insured but the policy was endorsed over to the First National Bank Trust Company of Macon as its interest might appear, as is customary in the trade, and therefore the First National Bank Trust Company of Macon is properly the party at interest and not W. L. Jessup, Jr. The court properly overruled this special demurrer.
5. Paragraph 7 demurs specially to paragraph 7 of the petition in that it is alleged that the petition is uncertain and indefinite because it does not specify in what manner the demand was made, where such demand was made, by whom and to whom such demand was made. On demurrer the facts in a petition must be considered as true. Moreover the objections to this ground of the demurrer were met by amendment.
6. Paragraph 8 demurs specially to paragraph 8 of the petition in that it is alleged that the same is prejudicial, immaterial, irrelevant, a conclusion of the pleader and is also uncertain in its content. It seems that counsel did not expressly argue in his brief in relation to either paragraph 7 or paragraph 8 of the demurrer and we may therefore consider them as abandoned. However, we might say that in our opinion the court properly overruled both of these demurrers.
7. Paragraph 9 of the demurrer demurs specially to paragraph 9 of the petition and calls upon the plaintiff to itemize the claim of $16,100 covering property which is alleged to have been destroyed by fire. We can not see that this paragraph of the petition is indefinite, uncertain, immaterial, irrelevant, highly prejudicial and a conclusion of the plaintiff unsupported by any allegation of fact. The record speaks for itself and shows the entire procedure. We think the trial court properly overruled this demurrer.
We can not see that there is anything material to be discussed in detail as regards the demurrers filed under date of May 23, 1958. They are substantially the same as the original demurrers and were properly overruled by the trial court.
It will be noted from the pleadings as set out hereinabove that in paragraph 7 of the answer the defendant admits liability for the $16,100 plus 7% from December 12, 1957, which amounts to $425.76 interest, making a total of $16,525.76. Other than that we can not see that the answer of the defendant needs special consideration here. Suffice it to say that the trial court did not err in any of the rulings on demurrer.
Judgment affirmed. Townsend and Carlisle, JJ., concur.