Epitomized Opinion

Published Only In Ohio Daw Abstract

Sam Schechtman brought this action in the Cleveland Municipal Court against the Great American Insurance Company to recover for loss on a fire insurance policy. The policy required proof of loss within 60 days, but it was not made until 62 days. The trial court rendered judgment dismissing the case for which error is prosecuted herein. The Court of Appeals held:

The pleadings did not show a waiver of the company as to the time of filing the proof of loss, nor any reason why the proof was not filed, and after defendant’s answer was filed, setting up failure to file, no i-eply was filed, and the evidence does not show a waiver. The law is well settled in Ohio, 104 OS. 434, and other cases, that the proof of loss must be made, unless there be a waiver, and if there is any evidence to sustain it, the waiver becomes a question of fact for the jury to determine. In this case there being no averment nor proof of waiver, the court below was sought and the judgment must be affirmed.