158 Ga. 421 | Ga. | 1924
Lead Opinion
B. F. Williams procured from the Atlas Assurance Company Limited a policy insuring him against all direct loss or damage by fire and theft, in an amount not exceeding $2,350, of an automobile described in said policy. The assured showed that on February 22, 1921, the automobile was destroyed by fire, and claimed the full amount of the policy. The company denied that the entire loss was sustained by fire, and a disagreement thereupon arose between the assured and the company as to the amount of loss or damage. The assured filed suit for the amount of the policy, and recovered a verdict in the sum of $1,300 principal, and interest from April 18, 1921. No appraisal was had to ascertain the amount of the plaintiff’s loss by fire, but in the negotiations the insurer’s agent asserted that in no event would the insured be paid more than $1,160. The policy sued upon contained, among others, the following provisions: “In the event of disagreement as to the amount of loss or damage the same must be determined by competent and disinterested appraisers, before
Only two questions are presented: First, was the provision with reference to an arbitration a condition precedent? Second, if it was a condition precedent to recovery, did the company waive this provision by failing to demand an appraisal within a period of sixty days? In our opinion the decision in this case must be controlled by the rulings of this court in Liverpool etc. Ins. Co. v.
Having held that the stipulation in the policy now before us does not constitute a condition precedent, so that on non-compliance therewith- by the insured the right of the insured to recover would be defeated, discussion of the second question raised in the brief of counsel for the insurance company is unnecessary; and the ruling of the court as to waiver will be found in the second and third headnotes. It may be that this court should have held in the Goldberg case, supra, that the stipulations there involved were conditions precedent, for non-compliance with which the contract was avoided and the plaintiff’s right of recovery precluded. But however that may be, the- ruling of this court in the first headnote of the Goldberg case settles the issue as to whether the burden of demanding an- appraisal under such a stipulation as that contained in the policy now before us rests only upon the insured. It was as much'the duty of the insurance company to demand an appraisal within the prescribed sixty days, if an appraisal was desired, as it would be the duty of the holder of the policy should such a one prefer an appraisement; and the company, having waived its right to demand an appraisal, is estopped under the circumstances of this case to complain that no appraisal was had. “The provisions of the policy of insurance sued upon in this case, relating to appraisement, do not make an appraisement a condition precedent to recovery on the policy, in the absence of demand for appraisement; nor do those provisions make it the duty of the insured to take the initiative in bringing about an appraisement.” Goldberg case, supra.
Concurrence Opinion
concurring specially. I think this case in its essential feature is controlled by the case of Goldberg v. Provident Insurance Co. (supra); and for this reason I agree to the majority opinion.
Dissenting Opinion
dissenting. We dissent from the ruling in the first headnote. If the language there used does not constitute a condition precedent, we cannot conceive of any language that would constitute a condition precedent, unless it should be held that it must be stated in so many words that the stipulation is a condition precedent.