Fidelity-Phenix Fire Insurance Co. v. Berry , 79 Ga. App. 179 ( 1949 )

Where in an action on a fire-insurance policy the declaration alleges compliance with the terms of the policy as to the filing of a claim, which was prerequisite to the filing of the action on the policy, it was error for the court to direct a verdict for the plaintiff when there was no evidence as to such compliance with the terms of the policy. This is true even if there was evidence as to a waiver of such compliance, in the absence of an amendment to the petition setting forth such waiver. Fidelity Casualty Co. v. Gate City Nat. Bank, 97 Ga. 634 (4) (25 S.E. 392); New Zealand Fire Ins. Co. v. Brewer, 29 Ga. App. 773 (116 S.E. 922), and cases cited.

The court erred in overruling the motion for a new trial.

Judgment reversed. Sutton, C. J., and Parker, J.,concur.

DECIDED APRIL 22, 1949.