Graham v. Niagara Fire Ins. Co.

• Decision Date: 17 March 1899
• Citation: 32 S.E. 579,106 Ga. 840
• Parties: GRAHAM v. NIAGARA FIRE INS. CO.
• Court: Georgia Supreme Court

32 S.E. 579

106 Ga. 840

GRAHAM v. NIAGARA FIRE INS. CO.

Supreme Court of Georgia

March 17, 1899

Syllabus by the Court.

1. Stipulations in a policy of insurance to the effect that no suit or action for the recovery of any claim by virtue of the policy should be sustainable in any court of law or equity unless such suit or action should be commenced within 12 months after loss of the property insured, that a particular statement of the loss should be presented to the company by the insured at its office as soon thereafter as possible, and that payment should be made 60 days after due notice and satisfactory proofs of loss had been received at the company's office, are conditions precedent to a recovery on such policy.

2. After there has been a failure by the insured to comply with such conditions, and the time has elapsed within which the insured has a right of action against the company under the provisions in the policy, a local agent of the company through whom application was made and the insurance obtained has not the power to bind the company by any waiver of any of the conditions named in the policy, a failure to comply with which by the insured had already resulted in a forfeiture of his right of action.

Error from city court of Savannah; T. M. Norwood, Judge.

Action by C. F. Graham against the Niagara Fire Insurance Company. Judgment for defendant. Plaintiff brings error. Affirmed.

W. R Leaken, J. M. Dreyer, and E. S. Elliott, for plaintiff in error.

Denmark, Adams & Freeman, for defendant in error.

LEWIS J.

Charles F. Graham brought suit against the Niagara Fire Insurance Company, a corporation under the laws of New York, on an insurance policy for the sum of $1,500. This policy was issued on the 24th of June, 1892, and insured the plaintiff against any immediate loss or damage that might occur by tornadoes, cyclones, and wind storms to certain houses located on Tybee Island, Chatham county. The policy extended for a period of five years. On the trial of the case it appeared, from the testimony introduced in behalf of the plaintiff, that these houses, which were worth an amount largely in excess of the sum for which they were insured, were totally destroyed by a storm which occurred August 27, 1893. Plaintiff at the time was abroad, but upon reaching home, about a month afterwards, thought of a policy he had taken out on these houses. After looking for the same, and being unable to find it, he concluded that no such policy existed, or it had lapsed. Some 4 or 5 days before the expiration of the 12 months after the destruction of the houses, he found this policy, and at once applied to the firm of Dearing & Hull, who were the local agents of the company at the time he applied for and obtained the insurance, and asked if the policy was still in force. Upon being informed that it was, he advised with one of the members of this firm as to what he should do, in view of the fact that the 12 months within which he had to bring suit under the terms of the policy would very shortly expire. The agent replied that he had better get up proofs of loss, and protect himself. Acting upon this suggestion or advice, the plaintiff immediately brought suit upon the policy, and made out proofs of loss, and had them forwarded to the company's office in New York, which, it seems, were received there about the expiration of the 12 months. The above facts appearing from the testimony, the court, after the plaintiff had closed his case, granted a judgment sustaining the defendant's motion for a nonsuit, to which the plaintiff excepts. It further appears from the record that the defendant transferred all its business in certain territory, including the matter relating to this policy, to another company after plaintiff's loss, and before defendant knew of his loss.

1. It appears from the terms of the policy that no payment was to be made thereon until 60 days after due notice and satisfactory proofs of loss were received at the company's office in the city of New York; that a particular statement of the loss should be rendered the company at its office in New York City as soon thereafter as possible, signed and sworn to by the insured, stating such knowledge or information as he had been able to obtain as to the time, origin, and circumstances of the same, etc.; and that no suit or action against the company for the recovery of any claim by virtue of the policy should be sustainable in any court of law or equity until after a full compliance by the insured with all the foregoing requirements, nor unless such suit or action should be commenced within 12 months next after the tornado, cyclone, or wind storm took place, and should any suit or action be begun against the company after the expiration of the aforesaid 12 months, the lapse of time should be taken and deemed conclusive evidence against the validity of such claim. There can be no question about the proposition that these stipulations in the policy were conditions precedent to a recovery thereupon. This principle has been so often recognized by this court that any further discussion of it is entirely unnecessary. In the case of Jackson v. Insurance Co., 36 Ga. 429, it appeared that suit was brought upon a policy of insurance obligating the insurance company to pay a certain sum within 60 days after due notice and proof of the death of the insured, and it was held that an allegation and proof of such notice and death were conditions precedent to a recovery on...