Fidelity-Phenix Fire Insurance Co. v. Berry

Full title: FIDELITY-PHENIX FIRE INSURANCE CO. v. BERRY

Court: Court of Appeals of Georgia

Date published: Apr 22, 1949

53 S.E.2d 126 (Ga. Ct. App. 1949)

53 S.E.2d 126

Opinion

32447.

DECIDED APRIL 22, 1949.

Complaint on fire policy; from City Court of Polk County — Judge Tison. February 15, 1949.

W. W. Mundy Jr., Smith, Partridge, Field. Doremus Ringel, for plaintiff in error.

J. V. Poole, Charles B. Teal, contra.

FELTON, J.

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.