135 Ga. 118 | Ga. | 1910
An insurance policy provided that no action on it should be sustainable “unless commenced within six months after the date of the fire,” and that “no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed’ or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto, and signed by the president, vice-president, treasurer and general manager, or assistant secretary, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.” The assured .sued on the policy after the expiration of such six months. Amendments to the petition were offered, making, among other allegations, the following: After plaintiff employed an attorney, the general counsel of the defendant “insisted and persuaded the plaintiff’s attorney to defer the matter of filing said suit, that he, the said attorney had taken the matter up with the company, and said also that he had very great hopes of being able to adjust the matter without litigation, and also informed the attorney for plaintiff that he would give him notice in plenty of time to file his suit, and repeatedly declared to the plaintiff’s attorney that plaintiff’s attorney should not be hurt by the delay; and plaintiff’s attorney, relying on these promises of the general counsel of the company, deferred filing suit until counsel for the defendant finally told plaintiff to file suit. Plaintiff’s counsel could and would have filed the suit at once when the matter was turned over to him, and it was turned over to him before the six months had expired from the date of the fire, but relied on the statement of the general counsel of the company, in the general. office in the city of Atlanta, that they were making an effort to adjust the matter, and . . that they were anxious to call the board of directors together and see if they could' not settle the matter without litigation. Petitioner alleges that as a matter of fact the general counsel for the defendant in this case had charge of its entire legal business and was directed by the president and secretary to look after the claim of plaintiff, and in looking mafter it and making these promises he was acting for the company and within the scope of his authority; and his declaration that the company was trying to adjust the matter, and insisting that counsel for the plaintiff defer the filing of the suit until he could see that it was adjusted, was the .sole cause of the suit not being filed within the six months prescribed by policy.” ■ Held, that, under the