Newark Fire Insurance v. Reese

Luke, J.

1. This is a suit upon a fire-insurance policy which provided that, within 60 days after the destruction of the property by fire, the assured.should render a statement to the insurance company, signed and sworn to by him, stating the loss or damage, the time, the place, and the cause of the damage, etc. A compliance with this provision of the policy was a condition precedent to a recovery; and the evidence adduced upon the trial shows that the proofs of loss submitted to the insurance company were not signed or sworn to by the assured.

(a) The policy provided also that “no officer, agent, or other representative of this company shall have power to waive any of the terms of this policy unless such waiver be written upon or attached hereto.” No such waiver was written upon or attached to the policy.

(&) The evidence shows also that the insurance company did not refuse payment until more than 60 days after the destruction of the property by fire, .and, therefore, this refusal to pay did not amount to a waiver of the provision of the policy in reference to proofs of loss. See Phenix Ins. Co. v. Searles, 100 Ga. 97 (4) (27 S. E. 779); Bailey v. First Nat. Fire Ins. Co., 18 Ga. App. 213 (89 S. E. 80).

Decided April 16, 1924. Rehearing denied May 13, 1924. Spalding, MacDougald & Sibley, Hall & Jones, for plaintiff in error. Stanford Arnold, contra.

2. Under the above rulings the court erred in refusing to grant a nonsuit.

Judgment reversed.

Broyles, O. J., and Bloodworth, J., concur.