Harp v. Fireman's Fund Ins. Co.

Decision Date19 May 1908
Citation61 S.E. 704,130 Ga. 726
PartiesHARP v. FIREMAN'S FUND INS. CO.
CourtGeorgia Supreme Court

Syllabus by the Court.

Where an insurance policy stipulates that proofs of loss must be furnished by the insured to the insurer within 60 days after the fire, but contains no express provision that the policy shall be void or forfeited upon failure to furnish proofs as required (the policy expressly declaring that the happening of certain other contingencies shall void it), and there are further provisions in the policy that the loss thereunder shall not be payable until 60 days after such proofs are furnished, and that no suit on the policy shall be sustainable until after full compliance by the insured with all its requirements, nor unless commenced within 12 months after the fire, held:

(1) The failure of the insured to furnish proofs of loss within 60 days from the fire will not work a forfeiture of the policy.

(2) The failure of the insured to furnish proofs of loss at least 60 days before the expiration of 12 months from the fire, unless there be a waiver of such proofs, will prevent the maintenance of a suit on such policy.

(3) Proofs of loss, in the absence of a waiver thereof, must be furnished within a reasonable time from the fire, or a suit on the policy cannot be maintained.

(4) An absolute refusal by the insurer to pay, made before the expiration of the reasonable time within which the insured must furnish such proofs, will be a waiver thereof; but such refusal made after such reasonable time has expired will not be a waiver of such proofs.

(5) Civ. Code 1895, § 2140, providing for the recovery of damages and attorney's fees against insurance companies, is not violative of section 1 of the fourteenth amendment to the Constitution of the United States, nor of any of the provisions of paragraphs 2, 3, and 4 of article 1 of the Constitution of the state of Georgia.

[Ed Note.-For cases in point, see Cent. Dig. vol. 28, Insurance §§ 1333-1336, 1391.]

Error from Superior Court, Upson County; E. J. Reagan, Judge.

Action by W. A. Harp against the Fireman's Fund Insurance Company. From a judgment sustaining general and special demurrers to the petition, and dismissing the same, plaintiff brings error. Reversed.

W. Y Allen and J. Y. Allen, for plaintiff in error.

Harris & Harris and Tisinger & Davis, for defendant in error.

HOLDEN J.

The plaintiff brought suit against the defendant company for the full amount of a policy of fire insurance, issued by the defendant on a stock of merchandise destroyed by fire, and for 25 per cent. additional as damages and attorney's fees. The defendant filed general and special demurrers; and to the judgment sustaining them, and dismissing the petition, the plaintiff filed his exceptions. The policy provided that the insured should give, in writing, immediate notice, among other things, of any loss thereunder to the company, and within 60 days after the fire should render to the company a statement, signed and sworn to by him, specifying several matters, one of which was the cash value of each item of property destroyed by the fire and the amount of loss thereon. The policy further provided that the loss "shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company," and that "no suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire," and that "this policy is made and accepted subject to the foregoing stipulations and conditions." The petition alleges that the plaintiff "performed all the conditions imposed on him by said policy"; but it appears from the petition that the insured failed to furnish proofs of loss within the 60 days, and one of the main questions involved in the case is whether or not such failure worked a forfeiture of the policy. The policy expressly enumerated a number of contingencies, upon the happening of any one of which the entire policy was to become void. There was no express provision in the policy that, if proofs of loss were not furnished within 60 days, the policy should be void, or the rights of the insured thereunder forfeited. As the policy provides many enumerated instances in which it shall become void, and there being no express provision that it shall become void upon failure to furnish proofs of loss in 60 days from the time of the fire, it must be held that there was no intention that this failure would work a forfeiture, especially in view of the fact that the law does not favor a forfeiture, and the further fact that a policy must be construed most strongly against the company issuing it. The meaning of the provision above referred to is that no suit could be commenced until there was a compliance with the requirement as to furnishing proofs of loss, but that the policy would not be forfeited because of the failure to furnish them within 60 days after the fire. Under this provision time is not of the essence of the contract as to the furnishing of proofs of loss. The policy does not provide that no suit can be maintained unless there is a full compliance with its requirements, but it provides that no suit can be maintained until after a full compliance; and in the decisions of some of the courts this difference is made a matter of importance in determining whether or not a failure of such compliance within the time specified by the policy works a forfeiture thereof. 4 Cooley's Briefs on Ins. 3370, and cases cited. On page 3369 of the same work the following doctrine is announced: "The weight of authority, however, as already stated, seems to support the rule that neither a provision that the loss shall not be payable until after the stipulated proofs have been furnished, nor the provision that no action shall be maintainable until after such compliance with the policy, will render the furnishing of proofs within the stipulated time a condition precedent. Rather do such provisions, by their phraseology, indicate an intention that the payment of loss shall be merely postponed until the proofs are furnished." We have been asked to review and overrule the decision in the case of Southern Fire Ins. Co. v. Knight, 111 Ga. 622, 36 S.E. 821, 52 L.R.A. 70, 78 Am.St.Rep. 216, where substantially the same ruling is announced as that now made; but after a careful consideration of the decision in that case, and of the many authorities bearing upon the question there cited, we are satisfied as to the correctness of the ruling in the Knight Case, and decline to overrule it.

2. There is a stipulation in the policy that "no suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire," and that the loss shall not become payable until 60 days after proofs of loss are...

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  • Woodall v. Fidelity & Cas. Co.
    • United States
    • Georgia Supreme Court
    • November 14, 1908
    ...is a reasonable time in which a notice of this kind can be given is one for the jury. Southern Fire Ins. Co. v. Knight, and Harp v. Firemen's Fund Ins. Co., supra. But it be said that, under all the provisions of this policy, notice was given within a reasonable time when it was not given u......

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