American Insurance v. Black

Broyles, C. J.,

dissenting. In my opinion, where a loss, covered by a policy of fire insurance, has occurred, the interest of the insured is not subject to garnishment by a creditor of the insured at a time when proofs of loss have not been made as required by the provisions of the policy, and when there has been no waiver by the insurance company of its right to insist upon such provisions, and when there has been no absolute refusal by the company to pay. See, in this connection, Civil Code (1910), §§ 5271, 5272; Bates v. Forsyth, 69 Ga. 365 (1-b); Tim v. Franklin, 87 Ga. 93 (13 S. E. 259); Singer S. M. Co. v. Southern Grocery Co., 2 Ga. App. 545 (59 S. E. 473); McKay v. Rowland, 20 Ga. App. 403 (2) (supra). The decision in Callaway v. Globe Ins. Co., 25 Ga. App. 649 (104 S. E. 415), is not in conflict with the foregoing ruling, for in that case the insurance company had waived its right to insist upon the provisions of the policy. I think that the certiorari in the instant case should have been overruled.