Thornton v. Germania Fire Insurance , 151 Ga. 312 ( 1921 )

Per Curiam.

This case came before this court on a question certified by the Court of Appeals, as follows:

“The policy of fire insurance sued upon contained a provision, that, subsequent to the burning of the property insured, the insured ‘shall, if required, furnish a certificate of the-magistrate or notary public (not interested in the claim as a creditor or otherwise, nor related to the insured) living nearest the place of fire, stating that he has examined the circumstances and believes the insured-has honestly sustained loss to the amount that such magistrate or notary public shall certify.5 Following this and other provisions, the policy contained the following stipulation: ‘No suit or action on this policy, for1 the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months after the fire.5 By an amendment to her petition the plaintiff admitted that before suit she did not furnish the required certificate of the magistrate or notary public referred to above, but in paragraph ‘ B5 of her amendment she set up the following reason why the certificate was not furnished: ‘ B. That the magistrate or notary public not interested in the claim as a creditor or otherwise nor related to the insured, living nearest the place of fire, was -Sheppard, and he, the said Sheppard, declined and refused to make any statement or furnish any certificate stating he had examined the circumstances and believed the insured had honestly sustained loss to the amount claimed by her or to any amount to be stated by such magistrate, for the reason, as given bjr him, that he had not seen the plaintiff’s property that was so destroyed by fire as above set forth, that he knew no facts upon which he could base an opinion to be expressed in such certificate, and therefore declined to make any statement whatever concerning the same, though requested so to do by the plaintiff herein for the purpose of furnishing said certificate to the defendant herein. . .’ The plaintiff further alleged in her amendment, in effect, that she made a bona fide effort to furnish the required certificate, but that as the magistrate refused to give it when requested; it was impossible for her to comply with this provision of the policy; and that under such circumstances this provision is not binding upon her and should not operate to defeat her right to bring suit upon the policy. Under these circumstances did the court err in striking, on the motion of the defendant, paragraph B of the amendment to the petition, on the ground that it was irrelevant and immaterial and afforded no valid excuse for the plaintiff’s failure to furnish the required certificate ? ”

The question certified being for decision by a full bench of six Justices, who are evenly divided in opinion, Fish, C. J., and Hill and Gilbert, JJ., being of the opinion that the court did not err in striking the amendment to plaintiff’s petition, and Beck, P. J., and Atkinson and George, JJ., being of the opinion that the court did err in striking the amendment to plaintiff’s petition, it is considered and adjudged that the case be returned to the Court of Appeals without instructions, as provided in article 6, section 2, paragraph 9, of the constitution (Civil Code, § 6506).