TRAVELLERS INDEMNITY COMPANY v. Marks , 111 Ga. App. 388 ( 1965 )

111 Ga. App. 388 (1965) 141 S.E.2d 911

TRAVELLERS INDEMNITY COMPANY
v.
MARKS; and vice versa.

41111, 41112.

Court of Appeals of Georgia.

Decided March 8, 1965. Rehearing Denied March 23, 1965.

Robert Edward Surles, for plaintiff in error.

Archibald A. Farrar, contra.

PANNELL, Judge.

1. While under an automobile policy which provides that the filing of proper proofs of loss within 91 days is a condition precedent to recovery under the policy, an offer to settle may present a jury question as to whether the offer was so small as to amount to a refusal to pay, which refusal to pay would constitute a waiver of the filing of proofs of loss, Great American Co-Operative Fire Assn. v. Jenkins, 11 Ga. App. 784 (76 Se 159), Moore v. Dixie Fire Ins. Co., 19 Ga. App. 800 (92 S.E. 302), Firemen's Ins. Co. v. Oliver, 53 Ga. App. 638 (186 S.E. 706, conforming to 182 Ga. 212, 184 S.E. 858), Firemen's Ins. Co. of N. J. v. Allmond, 105 Ga. App. 763 (3) (125 SE2d 545), such offer, to be effective as a waiver, must occur within the time provided for filing proofs of loss. Lloyd v. Aetna Life Ins. Co., 50 Ga. App. 478 (4) (178 S.E. 479); Reserve Ins. Co. v. Campbell, 107 Ga. App. 311 (130 SE2d 236); Phenix Ins. Co. v. Searles, 100 Ga. 97 (27 S.E. 779). It follows, therefore, that where, as in the present case, in a suit upon such a policy, it is not alleged that proofs of loss were made as required by the policy, and it appears that the claimed refusal to pay was made after the time within which the proofs of loss were required to be made, the petition fails to set forth a right of recovery under the policy and the trial court erred in overruling the general demurrer to the petition. See Reserve Ins. Co. v. Campbell, 107 Ga. App. 311, supra, holding that repeal of Code § 56-831 by the Act of 1960 (Ga. L. 1960, pp. 289, 754) did not affect the principle set forth therein.

2. The special demurrers to the petition which were overruled were either met by proper amendment or the overruling was harmless error in view of the fact that the portions of the petition demurred to were effectively disposed of by the sustaining of other special demurrers. It follows that there was no reversible error in the overruling thereof.

3. The sustaining of the special demurrers to the petition, which is complained of in the cross bill of exceptions, was proper in view of the allegations of the petition.

4. In view of the ruling in Division 1 all other proceedings in the case were nugatory and the assignment of error on the overruling of the motion for new trial is not passed upon.

Judgment reversed on main bill; affirmed on cross bill. Nichols, P. J., and Eberhardt, J., concur.