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Georgia Court of Appeals, 1949

Fidelity-Phenix Fire Insurance Co. v. Berry

Fidelity-Phenix Fire Insurance Co. v. Berry
Georgia Court of Appeals · Decided April 22, 1949 · Felton, Button, Parker
53 S.E.2d 126; 79 Ga. App. 179; 1949 Ga. App. LEXIS 609 (South Eastern Reporter, Second Series)

Fidelity-Phenix Fire Insurance Co. v. Berry

Opinion of the Court

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.

Button, C. J., and Parker, J., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.

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